CORNELL UNIVERSITY LAW LIBRARY |
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| The School of Law of Cornell University |
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And Presented February 14, 1893
IN MEMORY OF
JUDGE DOUGLASS BOARDMAN |
|

FIRST DEAN OF THE SCHOOL

By his Wife and Daughter
) A. M, BOARDMAN and ELLEN D. WILLIAMS
i

Da pep ee ee ee
bane

ood’s Mayne on damages.
WOOD’S

MAYNE ON DAMAGES.

THIRD ENGLISH AND FIRST AMERICAN EDITION.

BY
JOHN D. MAYNE,

OF THE INNER TEMPLE, ESQ., BARRISTER-AT-LAW, se
i %
AND gk

LUMLEY SMITH,

OF THE [NNER TEMPLE, ESQ., BARRISTER-AT-LAW,
LATE FELLOW OF TRINITY HALL, CAMBRIDGE.

ADAPTED TO THE AMERICAN LAW

BY
H. G. WOOD.

ALBANY:
JOHN D. PARSONS, Jx., PUBLISHER.
1880.
   

s

 

ngréss, in the year eighteen hundred and seventy-nine,
By JOHN D. PARSONS, Jr.,
In the office of the Librarian of Congress, at Washington, D. C.

4
Entered, according to act of

 

WEED, PARSONS & COMPANY,
PRINTERS AND ELECTROTYPERS,
ALBANY, N. ¥.
PREFACE TO THE AMERICAN EDITION.

Tue original edition of Mr. Mayne’s work has always been
favorably regarded by the profession in. this. country, and has been
cited as, if not more frequently by our ‘courts than any other work
upon the subject. But, while the original work was one of rare’
excellence, since its revision in 1877, by Mr. Mayne and Mr.
Lumley Smith, it stands without a successful competitor. The
topics are carefully and thoroughly treated, the rules are faith-
fully and conscientiously eliminated and clearly stated, and illus--
trated by the cases in such a manner as to enable the reader to
readily see the force and application of each rule. In a word, the
revisers have cleared away much of the rubbish with which the
subject has been invested, and have given to the profession a work
which will aid, rather than hinder them in the investigation of
questions covered by the topic, and which will prove of great
practical value to practicing lawyers and to the courts. Some
authors seem to aim to mystify, rather than to elucidate the diffi-
cult and vexed questions embraced in the topics about which they
write, but Mr. Mayne, from the beginning to the end of this work,
shows himself to be master of the situation and perfectly familiar
with his topic, and illustrates his propositions with such clearness,
force and vigor, that the reader at once grasps both the rule and
the reason for it. There are some chapters that might perhaps,
with propriety, have been omitted, especially as they treat of mat-

,
iv PREFACE.

ters arising under English statutes not in force in this country, but
I have always believed it to be better not to destroy the symmetry
of a work by eliminating any portion of it, especially when —as
in this case —it is of any importance. I have kept up the original
paging in the margin of the pages, so that no difficulty will be
experienced in finding points cited from the original work, or the
references in the notes, which are invariably to the marginal pages.
I have also added such notes as I deemed advisable, and have, as
far ag possible, pointed. out the distinction — where there is any —
between the English and. American Doctrines.

For convenient reference, I have divided the work into sections,
‘with head lines and catch words, and have added a very full and
exhaustive index, and I feel sure that the: work will be found of

great value to the profession.
H. G. WOOD.

Juné 28, 1879.
PREFACE TO THE THIRD EDITION.

Tue present issue of this work will be found to differ consider-
ably from its predecessors in respect of addition, omission and alter-
ation. The recent changes of procedure have rendered many
portions of the original work obsolete. These have now been left
out, or adapted to the new practice. The whole book has been
thoroughly revised, and much of the earlier part has been completely
re-written, more particularly with regard to those decisions which
have clustered round the leading case of Hadley v. Baxendale. It
is hoped that this edition will be found to contain all the English,
and the principal Irish decisions on the Law of Damages up to the
present date. Warned, however, by its growing bulk, the Editors:
have made no attempt to include the American cases which have
been decided since the publication of the Second Edition.

JOHN D. MAYNE,

LUMLEY SMITH.
Inner Temp_e,

December, 18°77.
PREFACE TO THE SECOND EDITION.

iy preparing the present Edition for the press, the Editor has been
anxious to retain as far as possible the original form of the work
and to enable the reader to distinguish what parts of it have Mr.
Mayne’s authority. The additions and alterations introduced have,
therefore, with a few trifling exceptions, been placed within brackets.
It has been thought advisable fo omit the portion of the work
devoted to. what are commonly called Compensation cases. They do
not fall strictly within the scope of the Treatise, and the decisions
upon the subject have of late years multiplied to such an extent that
they could not be satisfactorily discussed in the limited space at
command. The reader is therefore referred to works specially
devoted to their consideration. A short chapter has been added on
the assessment of damages under Lord Carrns’ Act, 21 & 22 Vict.,
ch. 27. Many Scotch and Irish cases have been cited, and reference
has been made to American decisions since 1856, upon the principle
and within the limits laid down by the Author in his preface to the

original edition.
LUMLEY SMITH.
Inner Tempe,

August, 1872.
PREFACE TO THE FIRST EDITION.

Ir can hardly be necessary to apologize for the appearance of a
treatise on Damages. The subject is certainly an important, and not a
very easy one. The materials are scattered over all our reports, and
many of our statutes. Yet, with the exception of the obsolete work
by Serjeant Sayrr, no English writer has ever thought of collect-
ing them.

The American treatise, by Professor Szpewicx, has gone far to
supply this want. The great merits of his work are too well known
to need any commendation from me. Its ability and research will
be best appreciated by those who have studied it as minutely as I have
done, and I gladly acknowledge the assistance which it has afforded
me. It appeared to me, however, that there was still room for an
English work upon the same subject. Many topics of importance to the
English practitioner are omitted by Mr. Sepawicx, partly through
design, partly on account of the- differences that have sprung up
between the laws of the two countries. He has, also, naturally
given a prominence to American cases, which is hardly satisfactory
to us, oppressed as we are by the multitude of our own reports, and
unwilling to extend our researches into unknown regions. Since the
last edition of his treatise, our own courts, too, have been remarkably
prolific in decisions upon this branch of the law, and have supplied
materials which well deserve a fresh attempt at classification. I

have tried-to collect every English case which bore upon the law of
B .
x PREFACE.

Damages ; and have only resorted to American decisions, where none
of our own were in point.

One of my great difficulties has been to distinguish between the
right to recover, and the amount to be recovered. The line which
divides these two branches of law sometimes vanishes entirely. The
right to sue at all sometimes depends upon the existence of the very
circumstances which determine the measure of damages. For in-
stance, where the wrong complained of affects the public generally,
the particular loss sustained by the plaintiff is the fact which at once
gives him a right of action, and gauges the compensation he is to
obtain. So in actions against executors, the possibility of obtaining
any real satisfaction may depend entirely upon the form in which
they may be sued, whether in their representative or personal char-
acter. In many cases of torts, no measure of damages can be stated
at all; and the only way of approximating to such a measure is by
ascertaining what evidence could be adduced in support of the issue.
All this has made many parts of, the present work resemble a treat-
ise on the law of Wise Prius, rather than one exclusively appro-
priated to Damages. Wherever such divergences appear, I must
only beg the reader to attribute them to a difficulty which I have
done my best to surmount.

That many errors of much graver natnre, both omissions and
mistakes, will be discovered, I cannot but expect. For these I must
only ask the indulgence of the critic. Those who are best acquainted
with the mazes of our law, will be the most ready to pardon me for
ee JOHN D. MAYNE.
5 Essex Court, TemPiy,

May, 1856.
SEc.

Pm oD et

ono D Oo

“TABLE OF CONTENTS.

CHAPTER I.

CASES IN WHICH DAMAGES MAY BE RECOVERED.

. Definition of the term ‘‘ damages.”

- : :
Former rule as to damages in personal, mixed and in real actions.

. Damages in actions on a penal statute.
. Or a prohibition.

CHAPTER II.

NOMINAL DAMAGES,

. What are.

. Nominal damages where there is an injuria absque damno.
. Cases in which absence of loss destroys right of action.

. Damages not necessarily nominal where no actual injury.

. Cases where damage is of the essence of the action.

10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
. Special damages from non-payment of money.
25.
26.
27.
28.
29.

Damages in debt.

Damages not a complete compensation.

Rules in actions of contract.

Hadley v. Baxendale.

Three rules in Hadley ». Baxendale.

First rule — damages arising in the natural course of things.
Name of article dependent on reason — Fletcher v. Tayleur.
Damages for loss of reason — Wilson ». Lancashire, etc., Railway.
Fall in market value of goods— Collard v. S. E. Railway Co.
Selling the test of depreciation.

Same rule in America.

Does not apply to carriers by sea — The Parana,

Damages where goods cannot be replaced.

Expenses arising from breach of contract.

Inconvenience arising from breach.

Damages from breach of warranty.

Special loss not known to defendant — Portman v. Middleton.
Smeed v. Foord.

Gee v. Lancashire, etc., R. R. Co,
Szc. 30.
81

82.

33.
34.

385.
36.

37.
38.
39.
40.
41.
42.
43.

45.

46.

4%.
48,
. 49.
50.

51.
52.
53.
54.
55.
56.
57.
58.
59.
60.

61.

Tasie or ConTENTs.

Meaning of market value — Great Western Railway Co. ». Redmayne.

Different results contemplated by each party — Cory 0. Thames Iron-
works Co.

Damages not contemplated by the defendant — Hales ». London, etc.,
Railway Co.

Expenses incurred by delay of goods.

Loss of special contract not recoverable — Horne ». Midland Railway
Co.

Non-delivery of telegram.

Whether any liability arises from mere communication or special cir-
cumstances.

Cases of common carrier — British, etc., Saw Mill Co. v. Nettleship.

Same view expressed in Horne v. Midland Ry. Co.

Same question in Elbinger Actien-Gesellschaft ». Armstrong.

Simpson »v. No. Westn. Railway Co.

Rules suggested in place of third rule.

Principle suggested in Fletcher v. Tayleur.

Cases in which the principle would apply.

. Would exclude exceptional profits.

Questions whether motive can be a ground of damage in actions on
contract.
Failure to make out title on sale of land.

CHAPTER I.
GENERAL RULES OF DAMAGES FOR TORTS.

Rule of damages in actions of tort.

Motive admissible as an element in estimating damages.

Whether damages are a compensation or a punishment.

Inquiry whether damages in cases of tort are a compensation ora
penalty.

. CHAPTER IV.
REMOTENESS OF DAMAGES,

Damage must not be too remote.

General principle.

Damage must be the immediate result of the act complained of.
Negligence causing personal injury.

Wilson v. Newport Dock Company.

When profits may be allowed for and when not.

Difference between primary and secondary profits.

Cases where profits not allowed for —losing chance of a prize.
Scotch law as to profits.

Damage remote from want of connection with cause of action.
Remote consequences not a ground of action.
SEc. 62.
63.

64.
65.
66.
67.
68.

69.

70.

71.

72,
73.

74,

15.

76.
77.

78.
79.

80.
81.

82.

83.

85.
86.
87.
88.
89.
90.
91.
92.
93
94,
95.
96.
97.

TaBLE or ConrTents. xiii

Damage arising from non-repair of fences.

Damage from acts of animals— Cox ». Burbridge; Lec ». Riley;
Ellis ». Loftus.

Act which subverts payment of money.

Damage remote when caused by plaintiffs own act.

Cases of contributory negligence.

Where plaintiff may recover though himself in fault.

Rule laid down by house of lords.

Cases in which plaintiff is a trespasser.

Contributory negligence applies to infant plaintiffs.

Where both parties are to blame.

Plaintiff’s conduct judged by apparent necessity for this act.

Contributory negligence of plaintiff’s servant, or of person in charge
of public conveyance.

Principle suggested in support of Thorogood ». Bryan.

Where defendant’s negligence is the primary and substantial cause of
injury.

Damage resulting from plaintiff’s premature act.

Damage too remote when wrongful actof a third party — Vicars 2.
Wilcox.

Liability of person who utters a slander for its repetition.

Voluntary repetition of slander.

Riding ». Smith.

Ward v. Weeks, doubted by Kztty, C. B.

Cases where wrong to A is an injury to B.

Fraudulent representations acted on by others.

. Fraudulent representation acted on in a way not intended.

CHAPTER V..

COSTS OF FORMER ACTION.

When costs of former actions are recoverable.

Decisions of the original court final.

An actual decision is necessary.

Reason for rule — former costs too remote.

When costs as between attorney and client may be allowed.
Costs not allowed when action for collateral purpose.

Nor when he had no real defense.

Costs of depending action, where liability is undefined.

New practice for settling liability as to all parties interested.
False assertion of authority by agent — damages include costs.
What false statement is actionable.
Case of defendant’s conduct exposing plaintiff to injunction.
Tenant holding over.
xiv
SEc. 98.
99.

100.
101.

102.

108.
104.
105.
106.
107.
108.
109.

110.
111.
112.

113.
114.

115.

116.
117.

118.
119.
120.

121.
122,
123.
124:

125

Tasiz’ or ConrTENTS.

Case of warranty and resale.

Costs allowable when defense sanctioned.

But not when action brought for plaintiff's own wrong.
Costs of action against two.

CHAPTER VI.
PERIOD UP TO WHICH DAMAGES ARE CALCULATED.

Time to which damages assessed —not allowed before cause of
actions arose.

Rule where damage has arisen since action brought.

Repudiation of contract. ;

Negligence of attorneys.

Interest.

Probable future loss.

Evidence of specific damages after action.

Damage is not recoverable where the subsequent injury is not the
necessary result of the defendants act.

Nuisances and continuing trespass.

Damages in case of continuing trespass.

Liability to pay money may be allowed for.

CHAPTER VII.
MITIGATION OF DAMAGES.

Mitigation of damages must be pleaded if possible.

‘Evidence not to operate as a cross-action — collateral matter not
admissible to reduce damages —conflicting dicta—chance of
recovering against third parties — matter subsequent not ground
for reducing damages in contract.

Must not conflict with laws of evidence — attorney’s bill and freight
are exceptions to general rule.

Effect of paying money into court.

General rules as to admissibility of evidence in reduction of dam-
ages.

Principle upon which reduction to be made.

Sale of specific chattel with warranty.

Evidence in mitigation of apparent injury inflicted by defendant —
Indemnity — trover — trespass — crim. con. — breach of promise
of marriage.

Injuries increased by plaintiff's conduct.

False imprisonment — libel — seduction.

Set-off.

No set-off in actions for unliquidated damage — judgment.

. Set-off where the debtor promises to pay ready money.
Sgc. 126.
127.

128.
129.
130.
181.
182.
133.
134.
135.

136.
187.
138.
139.
140.
141.
142.
143.
144.
145.
146.
147.
148.
149.
150.
151.
152.
153.
154,
155.
156.

157.
158.
159.
160.
161.

162.
163.

Taste or ContrENts. XV

Debt must be due.

Must be due in the same right — parties to claim and counter-claim
need not be identical.

Partners.

Joint or several note or bond.

Husband and wife.

Executor — claims by or against an executor.

Present practice under the English Statutes.

Trustee.

Public bodies having banking accounts in different rights.

Principal and agent where action is by principal — case of broker
under del credere commission.

When action is by agent.

Companies.

Equitable set-off.

Cross-demand not sufficient, unless supported by some equity.

Equity must have jurisdiction over subject-matter.

Mere existence of cross-demand not sufficient.

Equitable plea.

Set-off against assignee.

Exceptions to rule that debts must be mutual.

Joint debt set-off against separate debt.

Pleas in avoidance of circuity of action.

Mutual credit in bankruptcy.

Meaning of mutual credit.

What is credit.

Dealing with goods.

Must be due in same right.

A mere trader cannot set off.

Credit must exist at time of bankruptcy.

Set-off not limited to debts.

Case must admit of an account being taken.

Set-off extinguishes debt.

CHAPTER VII.
LIQUIDATED DAMAGES OR PENALTY.

Damages cannot exceed amount laid.

Nor amount liquidated by previous agreement.

Distinctions between penalty and liquidated damages.

Necessary to sue in form for liquidated damages, as such.

Where there is a penalty plaintiff may recover less or more than the
amount.

Same rules in equity.

Penalty, or liquidated damages, is a question of law.
Xvi

Szc. 164.

165.
166.
167.
168.
169:
170.
171.
172.
173.

174.
175.
176.
177.
178.
179.
180.
181.

182.
183.
184.
185.
186.
187.
188.
189.
190.
191.
192.
193.
194.
195.
196.
197.

198.
199.

TasiE or ContTENTs.

A sum stated to be a penalty is prima facie so—so where smaller
sum is secured by agreement for a greater one.

Thompson v. Hudson.

Otherwise when greater sum is actually due.

Varying rates of interest.

Where there are several things to be done.

Kemble o. Farren. *

Cases where damage from breach cannot be measured.

Where there is only one event.

Use of the words. ‘‘ liquidated damage” not conclusive.

In cases of doubt, inclination in favor of penalty.

CHAPTER IX.
INTEREST,

Interest at common law.

On bills and notes.

Express agreement.

Implied agreement — compound interest.

Where payment to be made.

A question of fact.

Bond with a penalty. :

Money payable on a fixed day— awards interest recoverable as
damages.

Cases in which interest is not recoverable.

Foreign judgment.

Partners.

Tender of payment into court.

Time up to which interest is computed.

Rate of interest.

Interest by statute.

Meaning of word ‘‘certain.”’

Notice of action.

Written instrument by virtue of which a debt is payable.

Discretion of jury.

Jury only can give interest.

Interest upon judgments.

Time from which it runs.

Equitable claims.

Interest on money refunded where decree reversed.

CHAPTER X.

CONTRACTS OF SALE.

Damages where goods have been received.
Or property has passed to defendant.
Src. 200.

201.
202.
2038.
204.
205.
206.
207.
208.
209.
210.
211.

212.
218.
214.
215.
216.
217.
218.

219.
220.
221.

222.
223.
224,
225.
226.
227.
228.
229.
230.

231.
232.
233.
234,
235.

TasLe or ConTENTS. Xvii

Damages for refusing to accept —time from which difference of
value to be calculated — damages calculated from date of breach
of contract — repudiation equivalent to breach.

Duty of buyer to carry goods away.

Damages for refusal to accept stock or shares.

Contract for shares not in existence; how to be construed.

Absolute undertaking to pay.

Damages for refusal to deliver goods.

When distinct times of delivery.

Intermediate case.

Damages when no time is fixed for performance.

Postponement of time of performance.

Delivery by installments.

Where goods are not procurable in market —loss of profits an ele-
ment of value.

Additional expenses caused by breach of contract.

Loss of profits on resale.

Article intended for use.

Actions for not replacing stock.

Profits not allowed for.

Bonus on stock.

Damages for‘non-delivery of goods where payment has been made—
American decisions.

English decisions — Startup ». Cortazzi; Dutch v. Warren.

Further discussion of the point.

Damages when goods paid for by bill, which is dishonored — order
for specific delivery of goods.

Actions on warranty — right to return goods.

Damages when article has been returned.

When article has not been returned.

Question as to effect of rule where goods have not been paid for.

Expense of keep. :

Damages where article bought for a specific purpose.

Expense incurred in advancing value of the article.

Costs of former action,

Misrepresentation.
CHAPTER XI.
SALES OF LAND.
Actions for breach of contract to convey land.

Damages when contract void.

What damages cannot be recovered.

Damages incurred after knowledge of defective title.

Damages for the loss of plaintifi’s bargain. — Bain v. Fothergill.
Cc
Sc, 236

237.
238.

239.
240.
241.
242.
248.
244,
245.
246.
247,
248.
249.
250.
251.
252.
253.
254,
255.
256.
257.
258.
259.
260.
261,
262.
263,

264,
265.
266.
267.
268.
269.
270.
Qui.

272.
2738.
a4.

Taste or Contents.

. Reason of exception.

Damages when failure is not from want of title.

Refusal to make title —Engel ». Fitch—express agreement to
convey, notwithstanding defect of title.

Loss of bargain.

Liquidated damages.

Doubtful title.

Damages for vendor's delay.

Actions for refusals to complete purchase of land.

Damages beyond deposit.

Forfeiture of deposit.

Agreement to lease.

Damages on covenants for title and against incumbrances.

Where something has passed to the plaintiff by the grant.

When nothing has passed.

When possession never obtained —when plaintiff is in possession.

Covenant for quiet enjoyment — damages on eviction.

Mode of calculating value of land; when it has increased.

Increase in natural value.

Outlay of capital.

Damages in case of eviction from part of the land.

Deed is conclusive as to amount of purchase-money.

Effect of covenant for quiet enjoyment.

Covenant for further assurance.

Covenant against incumbrances.

Principle of damages for breach.

Contingent incumbrances.

Covenant to review.

Fitness for habitation.

CHAPTER XII.
CONTRACTS FOR WORK.

Extras — deviations.
Claim for payment before entire work has been completed.
Where it is not in accordance with the contract.
When plaintiff may sue on guantum meruit.
Damages when defendant has prevented performance of contract.
When plaintiff has not completed time of service.
Service improperly determined .
Difference between agreement to retain in service, and agreement

to pay for service.
Intention of parties.
Effect of word ‘‘ agreed.”
When service is a mode for paying a debt.
Src. 275.
276.
277.
278.
279.
280.
281.
232.
283.

284.
285.
286.
287.
288.
289.
290.
291.

292.
293.
294,
295.
296.
297,

298.
299.
300.

301.
302.
303.
304.
305.
306.
307.
308.
309,

Tasie or ContENTSs. xix

Where covenants to serve and pry are independent.
Agreement to supply work not always implied.
Remedy for improper dismissal.

Contract does not subsist for any collateral purpose.
Measure of damages.

Doctrine of constructive service.

Menial servant.

Actions for dismissing without due notice.

Salary now apportionable by statute.

CHAPTER XIi.
DEBT.

Damages in dcbt nominal in general.

Interest.

Action cannot be commenced for nominal damage debt.

Case where payment since action brought.

Harner v. Denham.

Cook v. Hopewell.

Release after action brought.

Tender, penalty, liquidated damages, provision of statute 8 & 9
Wn. III, chap. 11.

Relief against penalty in bond.

How judgment to be entered.

Mode of suing for breach of covenant.

To what cases the statute extends,

When it does not apply — cases to which the statute applies.

No more than amount of penalty and costs can be recovered on
bond.

When plaintiff is not forced to sue for penalty.

Liquidated damages.

Value of sum in foreign currency.

CHAPTER XIV.
BILLS OF EXCHANGE AND PROMISSORY NOTES.

Interest on bills of exchange.

From what time it is calculated.

Liability of drawer or indorser to pay interest.
When pa, ment by installments.

Tender — payment into court.

Production of bill.

Rate of interest.

According to lew loci solutionis,

In actions against acceptor, drawer or indorser.
XX

Suc. 310.
811.
312.

313.
314,
315.
316,
317.

318.
319.
3820.
3821.
822.
323.
324.

325.
326.
327.

328.
329.
330.
231,

332.
333.
384,
385.
336.
337.
338.
339.
340.
341,
342.

843.
844,
345.

TasLe or ContTENTs.

Where interest is expressly reserved.

Effect of want of consideration.

Effect of failure of consideration — consideration executed — con-
sideration independent — partial failure.

Re-exchange.

Protest in case of foreign and inland bills.

Noting and postage.

Costs of former action.

Liability of transferor who does not indorse.

CHAPTER XV.
ACTIONS BETWEEN LANDLORD AND TENANT.

Actions for rent.

Use and occupation.

Where there is an agreement.

Value of premises may be increased by extrinsic circumstances.

Annual value, how estimated.

Period for which plaintiff can recover.

Rent in general cannot be apportioned — when it may be at com-
mon law.

Apportionment by statute.

Apportionment act, 1870.

Tenant holding over after notice to quit given by himself — what
notice sufficient.

Holding over after notice by landlord.

Who may sue.

Deduction on account of payment made by the tenant.

Should be pleaded as payment, and be deducted from rent next
due.

Actions against tenant on covenant to keep in repair.

Damages on covenant to keep in repair.

When landlord has repaired.

When damage was before execution of lease.

Damages against assignee of lease.

Proof of disrepair.

When action is brought at the end of the term.

Subsequent erections. ;

When plaintiff's interest has ceased.

Damages must arise from the defendant's neglect.

Meaning of a covenant to repair — what amount of repair is neces-
sary — evidence of previous disrepair.

Assignee of a term.

Expenses of survey.

Repair of party-wall.
Szc. 346.
347.
848.
349.
350.
351.
852,
853.
354,
355.
356.
357.
358.
359.

360.
361.
362.
363.

364.
365.
366.

367.
368.
369.
370.
371.
372.
373.
374.
375.

376.
377,
378.
379.
380.
381.
382.
383.

Tasie or Conrents. Xxl

Where there 1s a condition precedent.

Actions against the lessor.

Effect of previous recovery of damages.

Actions for breach of building covenants,

Covenant to mine.

Covenant to pay renewal fine. ,
Covenant to insure where no loss has occurred — Charles v. Altin.
Where a loss has occurred.

Loans secured by assignment of policy.

"Forfeiture of policy.

Covenant to pay rates.

Alternate covenants.

Covenant to deliver up possession.

Covenant not to assign.

CHAPTER XVI.
CARRIERS.

General view.

Land carriage — packed parcels.

Actions for freight — where entire ship engaged.

When payment is to be made by the ton, and a fresh cargo is to be
supplied.

Weight, how calculated.

Freight where cargo changes in bulk or weight.

Mode of calculating freight, which has been fixed with reference to
articles that are not carried.

Specified articles unlimited.

Specified articles limited in quantity.

Specified articles of defined weight.

Evidence in reduction of damages.

Breach of contract to supply cargo.

Choice of cargo.

Amount of cargo specified.

Evidence of custom.

Right of charterer who has not supplied a cargo to be allowed for
freight earned afterward.

Where charterer has not become liable to pay penalty.

Improper detention of ship.

Dangerous goods.

Actions against carriers for not taking goods.

Natural result of breach.

Failure to carry passengers.

Delay in carrying.

Reasonable expenses incurred.
é
xxii

Szc. 384.
885.

386.

387.
388.
389.

390.
391.
392.
393.
394.
395.
396.
397.
398.
399,
‘400.
401.

402.
408.
404,

405.
406.
407.
408.
409.
410.
411.
412.
413.
414,
415,
416.
417,
418.
419.
420.

Tas.LEe or Contents.

Remote damages — penalty.

Mode of calculating value of goods in actions for loss or injury to
them.

When goods have been sold for repair of ship. Where ship has
arrived — where not.

Obligation to protect goods,

Undue preference.

Liability of ship-owners for loss caused by pilot; or by fire; or
robbery in certain cases — wrongful sale.

Limitation of liability for loss of life or personal injury. ’

Costs of suit.

Foreign shipment.

Inland navigation.

Liability of land carriers at common law.

Carriers’ act.

Special contract.

Provisions of Railway and Canal Traffic Act, 1854.

Meaning of word ‘‘ loss. ”

Value must be declared in the first instance.

Fraud in concealing value.

Telegraphic messages.

CHAPTER XVII.
CONTRACTS OF SURETYSHIP

In actions against surety.

Plaintiff must prove a loss arising from a cause insured against.

In case of bankruptcy, dividend must be apportioned to whole
debt.

Damages when promise to do a thing is absolute.

When promise is to indemnify.

What amounts to a loss.

Liability to suit— action pending.

Judgment recovered.

A general indemnity only extends to the lawful acts of others.

Otherwise when an individual is specified.

Actions by assignor against assignee.

Amount of damages.

Actions by lessee against sub-lessee.

Sureties on a replevin bond.

Sureties for a sheriff's bailiff.

Right to compromise.

Action against principal by surety.

By surety who has no security.

What amounts to payment by the surety — giving a note — bond.
Sec. 421.
422,
423.
424.
425,
426.
427.
428.
429.
430.
431.
432.
433.
434.

435.
436.
437.

438.
439.

440.
441.
442,
443,
. Marine insurance.
445.
446.

447,
448.
449.

450.
451.
452.
453.
454.
455.
456.

TaBLEe oF ConTENTs. xxiii
Goods taken in execution.
Transfer of stock — mortgage.
Interest.
Action by bail.
When surety may sue co-surety, and for what.
Proportion for which each surety is liable.
Costs of suit.
When sureties are bound by different instruments.
Implied indemnity.
Acting as agent without authority.
Collin v. Wright.
Hughes o. Graeme.
Spedding ». Nevell.
Godwin v. Francis.

CHAPTER XVII.
LIFE, FIRE, AND MARITIME INSURANCE.

Life insurance, not a contract of indemnity,

Insurance against accident.

Fire insurance a contract of indemnity—mode of valuing subject-
matter.

Absolute value of property to be taken, not its value to the insured.

Whether property destroyed should be taken at ite value before
destruction, or at the amount for which it might be replaced.

Insurance by parties having only a partial interest.

Collateral loss.

Expenses of saving property from fire.

Double insurance.

Loss, total, without abandonment.

Constructive total loss in the case of the ship; in the case of the
cargo.

Delay of voyage.

What loss of freight is total.

Nature of abandonment must be given; except in the case of
freight.

Insurance free of particular average.

Total loss of separate parcels of the cargo—Rolli o. Janson.

Care of goods differing in species.

Total loss charged into partial.

Value may be agreed beforehand.

Amount recovered on other policies must be deducted.

Mode of valuing goods or open policy.
XXxiv

Sze. 457.
458.
459.
460.
461.
462.
463.
464,
465.
466.
467.
468.
469.
470.
471.
472.
473.
474.
475.
476.
477.
478,
479.
480.

481.
482.
483.
484.
485.
486.
487.
488.
489.
490.
491.
492,
493.
494.
495.

TasLe oF ConTeENTS.

Deduction for subject-matter withdrawn from risk.
Valuation of freight.

Salvage.

Valuation of partial loss to ship.

New for old.

Valuation of partial loss of goods.

Partial loss of freight.

Charges incurred for the preservation of the vessel.
Liability of insurer to reimburse a general average loss.
How bound by foreign adjustment.

General average.

Sources of contribution.

Things sacrificed contribute.

Only property exposed to risk contributes.

Freight, when contributory.

Valuation of loss of goods—destruction for probable injury.
Jewels, etce.—deck goods—freight.

Ship—when totally lost.

Where goods have been sold.

Mode of valuing the property saved.

In the case of the ship.

Goods.

Freight.

Examole of adjustment.

CHAPTER XIX.
EJECTMENT.

Changes in the character of ejectment.
Writ of dower.

Demand necessary.

Amount of damages.

Time to which they are assessed.
Effect of death of heir ; or widow.
Quare impedit.

Where bishop has not collated .
Where bishop has collated.

Damages against every disturber.
‘Six months;” how construed.
Equitable application of statute.
Where no actual loss.

When two years’ value may be recovered.
Action of account.
Szc. 496.
497.

498.
499.
500.
501.
502.
503.
504.
505.
506.
507.
508.
509.
510.
511.
512.
513.
514.
515.
516.

517.
518.
519.
520.
521.
522.
523.
524.

525.
526.

527.
528.
529.
530.

TasLE oF ConreENTs. XXV

CHAPTER XX.
TROVER.
Torts.
Damages in trover are given for the conversion —mode of calcu-

lating value where-there has been a change in the price.

American rule.

Damages for conversion of bill of exchange.

Damages vary according as plaintiff was forced to sell or not.

Damages when article has changed its form.

Cases in which minerals have been severed.

Where goods deposited with defendant under void contract.

Presumption as to value in certain cases.

Value when sold.

Trover for title deeds.

Bills and notes.

Damages when security is void.

By the act of the defendant.

Damages by estoppel.

Interest.

Special damage.

Action for seizure under the Customs Act.

Mitigation of damages — want of title.

Johnson ». Stear.

Damages in action by bailee, etc. —damages in action against un-
paid vendor.

Cost of keep of an animal.

Reversioner.

Right of an action against third parties.

Re-delivery of property.

Verdict by consent.

Reducing damages after verdict.

Staying proceedings.

Staying proceedings as to some articies where the claim is for sev-
eral.

Damages for detention.

Property changed by recovery in trover and satisfaction — Buck-
land v. Johnson; Brinsmead v. Harrison.

Effect of a judgment for less than the full value of the goods.

Detinue. /

When property cannot be returned.

When property vests in defendant.

D
xXXv1

Suc. 581.
582,
533.
534.
585.
536.
537.
538.
539,
540.
541.
542.
548.
544,
545.
546.
547,

548.
849
550.
551.
552.
553.

554.
555.

. 556.
557
558.
559.
560.
561.
562,
563.
564.
565.
566.
567.
568.

TasLE or Contents.

CHAPTER XXI.
TRESPASS TO GOODS.

Damages in trespass are value of goods.
Special damages,

Interpleader.

Collision at sea —- demurrage.

Damages for the manner of the taking.
Actions against several — actions by several.
Mitigation of damages.

Repayment of produce of goods taken.
Evidence of collateral matter is not admissible,
Actions against sheriff,

Damages when goods have been seized by breaking open outer door.
Breaking outer door of an out-house,

Seizing goods out of jurisdiction.

Payment of money to recover.

Damages where plaintiff must have sold.
Payments made by sheriff.

Case of doubt as to right of property.

CHAPTER XXII.

REPLEVIN.
Damages in replévin.
Effect of recovery,
Verdict for defendant.
At common law.
By statutes of Henry VIII
By statute Car. IT,
Replevin for poor rates,
Illegal distress—form of action where an irregularity has been com-
mitted in distressing for rent,
Action for an excessive distress.
Irregularity in distraining corn or hay, or growing crops.
Effect of tender.
Amount of damages.
Irregularity does not make sale void,
Selling without appraisement.
Other irregularities.
Driving cattle into another county.
Cases to which 11 Geo. II, ch. 19, § 19, does not apply.
Effect of a tender.
What makes a party a trespasser ab initio,
Trespass ab initio as to part of the distress,
Thing distrainable conditionally.
Szc. 569

570.
571.
572.
573.
574,
575.
576.
577.
578.
579,
580.

581.
582.
583.
584.
585.
586.
587.
588.

589.
590.
591.

592.
593.
594,
595.

596.

TasBLe or ConrTENTSs. XXVii

CHAPTER XXIII.

INJURIES TO LAND.
Injuries to land.
Damages vary according to plaintiff's interest in the land.
Evidence of interest.
Right of tenant to carry away soil.
Reservation of rights on surface to grantor in fee.
Trespass by mining.
Prospective injury from defendant’s act.
Co-trespassers.
When consequential loss may be allowed as substantive damage.
Several trespassers,
Vindictive damages.
Compensation for acts done by authority of parliament.

CHAPTER XXIV.
MESNE PROFITS.

Mesne profits—against whom it may be brought.
Entry relates back to origin of title.
Effect of judgment in ejectment.
Damages.
Gosts of previous ejectment.
Payments in reduction of damages—improvements.
Mesne profits may in some cases be recovered in ejectment,
Executions.
CHAPTER XXV.

INJURIES TO EASEMENTS.

When it is necessary to prove actual damage.
Actions by reversioners, etc.
When actual damage must be proved.

CHAPTER XXVI.

MALICIOUS PROSECUTION.

Action for malicious prosecution must show damage.
Liability to extra costs not a ground of damage.
Malice.

Evidence of probable cause.

CHAPTER XXVIII.

EVIDENCE IN ACTIONS FOR MALICIOUS PROSECUTIONS.

As to the proofs on part of plaintiff in actions for malicious pros-
ecutions.
XXVili

Sgc. 597.
598.
599.
600.
601.
602.
603.
604.
605.
606.
607.

608.
609.
610.

611.
612.
613.
614.
615.
616.
617.
618.
619.

620.
621.
622.
623.
624.
625.
626.

627.
628.
629.
680.

TABLE oF ConrTENTS.

The prosecution and acquittal must be proved.

Proof that defendant was the prosecutor.

Proof of charge and dismissal before the magistrate.

If there be probable cause the prosecutor is protected.

Where the proceedings are by the act of the magistrate.

Probable cause, how found.

Evidence of the absence of reasonable and probable cause.

Malice.

Disbelief of party making the charge.

Proceedings in bankruptcy without probable cause.

Positive evidence necessary to show that prosecution was ground-
less.

Effect of abandoning the prosecution.

Absence of probable cause a strong presumption of malice.

Distinction between institution of a prosecution and its continuance
by an agent,

Proofs on the part of the defendant.

Mere suspicion no sufficient defense.

Evidence of the existence of reasonable and probable cause.

Evidence of reasonable and probable cause.

Deliberation of jury.

If probable cause exists, action cannot be maintained.

Proof of the offense charged.

Evidence of character.

Evidence as to the plea of justification.

CHAPTER XXVIII.
ASSAULT AND FALSE IMPRISONMENT.

Assault and false imprisonment.
Mitigation of damages.

Removal by magistrate.

Former recovery.

Joint actions, and actions against several.
Practice under the Judicature Act.
Justices of the peace.

CHAPTER XXIX.
PERSONAL INJURY FROM NEGLIGENCE.

Personal injury caused by negligence.

Damages not too remote.

Negligent management or navigation of vessels.

Damages when the plaintiff is insured against loss, or has received
full indemnity under a contract of insurance.
Sxe. 631.

632.

633.
634,
635.
636.
637.
638.
639.
640.
641.
642.
643.
644.
645.
646.
647.

648.
649.
650.
651.
652.
653.
654.
655.

656.
657.
658.
659.
660.
661.
662.
663.

TasLe or Conrents. Xxix

Damages recoverable by personal representatives in cases of death
from negligence.
No deduction in respect of insurance.

CHAPTER XXX.
ACTIONS AGAINST SHERIFF.

Actions by creditor against the sheriff in replevin.
Stat. 19 and 20 Vict., ch. 108. ;
Extent of liability upon replevin bond.

Damages against sheriff. :

When bond is lost.

Damages for breach of other duties.

When it is necessary to prove actual damage.
Arrest on mesne process.

Arrest on final process.

Actions for escape — must be in case — measure of damages.
Action for amount levied.

Actions by the debtor.

Extortion.

Form of declaration.

Only taxed costs recoverable.

CHAPTER XXXI.
ACTIONS AGAINST ATTORNEYS AND WITNESSES.

Actions against attorneys for negligence.

Where record is withdrawn.

When cause is taken as undefended.

Action against witnesses.

Procedure in case of absence of witness.

Damages in an action are the costs of withdrawing the record.
Plaintiff must prove damage.

Action for penalty.

CHAPTER XXXII.

DEFAMATION. j

Defamation — evidence of malice; other slander.

Persisting in the charge.

General evidence of character to prove malice.

Evidence of the circulation of the libel.

When evidence of malice is inadmissible. «

Joint actions. .

Substantial damages may be given without proof of actual injury.
Future damage.
Xxx

Src. 664,
665.
666.
667.
668.
669.
670.
671.
672.
6738.
674.
675.

676.
677.
678.
679,
680.
681.

682.

683.
684.
685.
686.
687.
688.

689.
690.
691.
692.
693.
694.
695.
696.

TasBLe oF ConTENTS.

Evidence of specific injury after action brought.
Proof of general injury.
Special damage must be laid.
Special damage must be the result of defendant’s own acts.
When the act of a third party will be good special damage.
Where damage is the natural result of the slander.
Special damage too remote.
Evidence in mitigation of damage.
That he had received previous provocation.
General bad character.
Evidence of truth of libel.
Former recovery against a third party — apology for libel in news-
paper.
CHAPTER XXXIII.
BREACH OF PROMISE OF MARRIAGE.

Actions for breach of promise of marriage.
Evidence of defendant’s condition in life.
Ageravation by seduction.

Evidence in mitigation of damage.

When the action is barred.

Evidence of character, conduct, etc.

CHAPTER XXXIV.
SEDUCTION.

Damages in seduction not confined to compensation for loss of
service. i

Rank an element, but not wealth.

Evidence of promise of marriage.

Evidence of general chastity.

Mitigation of damages, immodest conduct.

Negligence of the plaintiff.

Seducing from service.

CHAPTER XXXV.

CRIMINAL CONVERSATION.
Adultery.

Grounds of damage in crim. con.

Separation between husband and wife.
Evidence of the terms upon which they lived.
Infidelity of husband.

Character of wife.

Husband himself to blame.

Defendant misled or solicited.
Sxc. 697

698.
699.

700.
701.
702.
703.

704.
705.
706.
707.
708.
709.
710.
711.
712.
713.
714.
715.
716.
7177,
718.
719,
720.
“424,
722.
723.
724.
725.
726.
727,
728.
729.

730.
731.

Tasie or Contents. xxxi

. Evidence of defendant’s wealth.
Former recovery where there were several paramours.
Application of damage by court.

CHAPTER XXXVI.
ACTIONS BY AND AGAINST EXECUTORS.

When executors may sue.

When executor cannot sue,

Principle of damages.

Additional rights of action given by 4 Ed. II, ch. 7; 3&4 Wm.
IV, ch. 42; 9 & 10 Vict., ch, 98.

Damages limited to pecuniary loss.

Principles on which pecuniary loss is to be calculated.

Deduction on account of insurance.

Damages not limited to income legally secured.

No action unless deceased could have sued.

On whose behalf.

Actions against an executor — new procedure,

When executor must be sued as such.

When executor not liable.

Actions of tort —3 & 4 Wm. IV, ch. 42.

Vindictive damages not allowable against an executor.

Actions against executors for dilapidations.

Contracts made with executors as such,

Actions against executors personally.

Contracts made by him.

Trading.

Effect of a submission to arbitration.

Liability of executor for funeral expenses.

Use and occupation.

Actions for rent due since the death of the testator.

Where the term has been assigned.

How the profit accruing from the land is to be estimated.

Covenant to repair.

Effect of a devastavit at law; in equity.

Proper mode of pleading by an executor.

Judgment against him.

CHAPTER XXXVII.

4
ACTIONS BY TRUSTEES IN BANKRUPTCY.

Actions by trustees in bankruptcy.
Principles upon which trustees of bankrupt may sue — Beckham ».
Drake.
XXxii
Src. 732.

733.
734.
735.
“736.
737.
738.
739.

740.
741.

742.

743.

744,

745.
746.
74%.
748.

749,
750.
751.
752.

753.
754,
755.
756.

57.

758.
759.
760.
761.
762.
763.

TasLe or ConrTENTs.

Cases in which they may sue—not for a mere personal injury,
unless there has been an agreement to pay money on account of it.

Trespass to land or goods in his possession.

Nominal damages.

When the final loss to the estate is the euitenion of damages.

When it is not.

Right to sue for his personal labor.

Right of action of wife.

Bankruptcy of partner.

CHAPTER XXXVII.
ACTIONS BY PRINCIPAL AGAINST AGENT.

When an action lies,

When a loss has arisen from his negligence.

Actual loss furnishes the measure of damages.

Damages must be the necessary result — and not be too remote.

Nominal damages —- when defendant may show that no loss could
have taken place.

Agent bound to account for profits.

Commission on sale.

Revocation of authority.

Agent entitled to indemnity.

CHAPTER XXXIX.
PLEADING SPECIAL DAMAGE,

Special damage must be alleged when it is the essence of the action.

Particular instances of damage.

Special damage cannot be proved unless laid.

Statement of special damage must be as full as the case will admit
of.

Distinction between particular and special damage.

Damages must be stated correctly.

Interrogatories.

Debt.

CHAPTER XL.
ASSESSMENT OF DAMAGE.

Judgment by confession.

When a reference to the master will be allowed.
Evidence upon a writ of inquiry.

Amount due must be proved, unless admitted.
Judgment by default.

Assessing damages upon several counts.

Or upon the same count containing several demands.
Src. 764.
765.
766.
767.
768.
769.

\
770.
771.
772,
773.
774.
T75.

T16.

T77%.
778.
779.
780.
781.
782.

783.

TasLe or ContTENTS. XXXill

In actions for slander.

New procedure.

Separate assessment in detinue.

Prospective damages.

Misjoinder of counts. .

Where the action is against several, damages must be assessed gene-
rally.

New procedure.

Contrary decisions.

New procedure.

Where some pay money into court.

How assessment of damages severally might be remedied.

Judgment by default against all.

Judgment by default against one in contract.

In tort.

Plaintiff could not be nonsuited against those who appeal.

Former recovery in tort.

Verdict for larger damages than are claimed.

Double and treble damages.

When a writ of inquiry may assess damages in place of the princi-
pal jury.

Confession — demurrer to evidence — replevin.

CHAPTER XLI.

POWERS OF THE COURT OR JUDGE IN REGARD TO DAMAGES.

784.
785.
786.

787.

788.
789.
+ 790.
791.
792.

793.

794,
795.

Right to begin.

Directing the jury.

Amendment.

New procedure — application to the judge who tried the cause —
his decision final.

From what material amendment might be made.

Amendment must be in furtherance of the intention of the jury.

At what time the amendment might be made.

Power to increase or abridge the damages.

Damages on writ of inquiry.

Where damages depend on question of law.

CHAPTER XLII.
NEW TRIAL.
New trial granted where there has been error in matter of law.
New trial will not be granted, where damages are unliquidated on
the ground of their being too small, unless there has been mis-
conduct of the jury.
E
XXXLV

Src. 796,
797.
798.

799.

800.
801.
802.
803.
804.
805.

806.
807.

808.

Tasie or Contents.

New trial will be granted where there is a measure of damages.
Contingent assessment.

New trial on the ground of damages being excessi7e.
Cases in which it has been refused — trespass.
Assault,

False imprisonment.

Malicious prosecution.

Seduction — crim. con.

Breach of promise of marriage.

Trover.

Mistake in assessment.

Cases in which a new trial was allowed.

New trial where verdict is under 207.

CHAPTER XLIII.

DAMAGES IN ACTIONS FOR INJUNCTIONS OR SPECIFIC PERFORMANCE.

809.

810.
811.
812.

813.

21 & 22 Vict., ch. 27, Lord Cairns’ Act.
Payment of money into court.
Damages in discretion of the court.
Special damage.

Damages under special prayer for relief.
TABLE OF CASES

 

    
  
  
   
 
  
  
  
  
     
    
     
  
 
   

 

 

    
 
  

 

 
   

 

    
 
    
 
  
  
 
  
 
 
 
 
 
 
 
 
     
  
 
  
  

 

Paae. Page.
Aaron vy. Alexander .........-....ecee eens 726 | Allen v. Maddox....... slides selaypeaiiale oe 167
Aaron v. Moore.............. ... 804] Allen v. Sugrue sie vsejatecenvss, 468
Aaron v. Second Ave. R. R. Co. 137 | Allensworth v. Coleman...... alse + +» 630
Abbott v. McFie .... .........4. -..- 101] Alliance Bank v. Halford............. 169
Abbott v. Parfitt... . 685 | Allison v. peacaler agate waste : ah 61, 597
Abbott v. Wilmot... . 225 | Allred v. Bray. ...... 6, 751
Abbut v. Brandywine... . 643] Allsop y. Allso wet oe 639
Abrahams y. Kidney 658 | Allum v. Boultbee ............+..sscsse- ee (57
Academy of Music v. Hackett. .387, 39] Alsager v. Close... a Ghalib « 498
Ackerman v. Ehrensperger.. 344, 416 Alsager v. Currie ... ............. -» 193, 194
Adams v. Adams an Colter . «.. 668 | Alsop v. Caines....... 0 ......... 2c cece eee 173
Adams v. Blodgett .......... Alston v. Herring........ ......ce cece eee 191
Adamsv. Broughton _..... Alston v. PEI 2a? eeaclemuae aver haarate 71, 709
Adams y. Ft. Plain Bank... ao te Alton v. Midland Ry. Co.......... 2.22... 12
Adams V. Kelly........... 6. cess eee oe « 112| American Central Ins. Vo. v. McLanathan 445
Adams v. Landashire & Yorkshire Ry., 104 | American Express Co. v. Parsons........ 490
599 | American Ins. Co. v. Griswold .......... 444
Adams v. McMillan..................00008 283 | American, etc., Ins.Co. v. Robertshaw.. 440
Adams v. Michael....... . §| Ames v. Hazard 49
Adamsv. Mid. Ry. Co.... -... 157 | Ames v. Palmer... ..........cccccseeeeeene 486
Adams v. pele eed Straits we 225 | Ames v. Rathbun.................2ee eee 584
Adams v. Smith.. ».. 148] Ames v. Union R. R. Co. wives 81
Adams v. Ward.... 1... ..ccseeee cece eens 642 | Ammerman v. Crosby... 572
Adams’ Ex. Co. ve Egbert: 70 | Amor v. Fearon...... 3
Adamson V. Jarvis .........2-- cesses eee ee 707 | Amory v. McGregor 69,
Addams v. Heffernan... . 217} Anderson v. Buchanan..... ............. 567
Addison v. Overend ... ... 503 | Anderson v. Buckton............ 0.2... 05 548
Adkins v. Williams ...... : 619 | Anderson v. Chester & Holyhead Ry. Co.. 409
Aitua Ins. Co. v. Hall..... ... 453 | Anderson v. ee avangiaeiaibeledatorsaclaree aves 514
itna Ins. Co. v Johnson . . 445] Anderson v. Wallis...................2008 457
48tna Ins. Co. v. Miers.... 453 | Anding v. Perkins. .»» 88, 264
48tna Ins. Co. v. Tyler........ 446 | Andres v. Wells.............c.ccececueveee 152
African Steamship Co. v. Swai . 456 | Andrew v. Hancock . - «++. B61, 362
Agra & Mastermans Bank v Leighto , 181} Andrews v. Askey..... -.........eceeueee 661
Aiken v. Bemis.... ...- . 70 | Andrews v. Davidso vee 6 295
Ainslie v. Boynton Andrews v. Hoover......... ...eseeseeeee 240
Ainslie v. Wilson ... Andrews v. Kneeland . sattenae 210
Ainsworth v. Bowen Andrews v. Van Duzer 51, 641, 642

Andrews v. Varrell
Anevill v. Brady
Anglo-Eg. Nav. C

Ainsworth v. B. E. R
Aireton v. Davis .....
Aitchinson_v. Maddoc
Akerley v. Haines .... 659 | Anibal v. Hunter
Albee v. Little....... 170 | Angier v. Taunto:
Albert v. Bleeker Street 76 | Angle v. Hanna..
Alder v. Boyle ...... 706 | Anketel v. Conv
Alder v. Keighley .................+. 758, 697 | Anonymous ..
Alderman v. rench.. a bayhisrareiens 150, 155, ie 643 | Anscomb v. Shc
Aldrich v. Goodell.... .. 89 | Ansett v. Marshal
Aldrich v. Palmer....... * 950 Anthony v. Haney.

 

Alers v. Tobin............. . 402] Anthony v. Slaid.. ne 1B
Aleworth v. Roberts ..... : . 480] Anthony v. Stephens 643
Alexander v. Gardner .. . 288 | Antoine Co. v. Ridge Co..... - 750
Alexander v. Hoffman .. - 308 | Apothecaries’ Co. v. Burt....... 4
Alexander vy. Troutman ie

 

. 202] Appleby v. Myers........
Alfaro vy. Davidson ...... . .18| Applegate v. oo
Alfred v. Farlow ........ . 723 | Applegate v. Ruble..
Allah Bey v. Aenea Siew 624 | Apps v. Day 5
Allbright v. Aldrich.. 2... 169 | Archard v. Hornoe
ANOO: Vo AMON oo osinia's, cic iiccieis eras Sarat suierersyetorve 668 | Archerv. Dunn.....

Allen v. Blunt .. ++» 122| Archer vy. Williams....... ‘
‘Allen v. Conrad... «-- .13| Arctic Ins. Co. v. aoe a aiaiave(eCetoate al glaAe dines
Allen v. Craig... .. . 750} Arden v. Goodacre..

Allen v. Doyle......... --. 145| Armington vy. Gee...
Allen v. Gena Ins. Co.. . 452 | Armitage v. Haley.
Allen v. Jarvis......... ITN! 243 | Armory v. Delamirie |...
Allen. ¥. Kemble: vniccw: wamavia zanna eeoeie 345 | Armstrong v. Miller... ....

 
XXXVI

 

 
   

TasLe or Cases.

PaGeE.
Armstrong v. Y. & L. Ry. Co...... 5 | Baker v. Cartwright ......... smekson ermine 655
Armsworth y. S. E. Rail. Co,.. Baker v. Davis.......... ‘ . 361
Arnold v. Johnston........... A Baker v. Dewey
Arnold v. Suffolk Bank.. .-..16, 257, 259 | Baker v. Garrett..............
Arnott v. Redfern...... in «ss. 227] Baker v. Sanderson..............
Arrington v. Jones...... 140 | Baker v. Wheeler .......
Arrowsmith vy. Gordon.. Baker '¥.: WilKIDS sac cies eee an pavcceeiee
Artchinson y. Baker..... Baker v. YOUNG... ssssecssecee eee

Arthur v. Moss.......0065
Ashby v. Ashby ..........

   
 
 
 
  

Ash v. Marlow.... .......-.. 84
Ash v. Pouppeville ...... wee Be

Ashdown v. White.... ......... ........ 208
Ashley v. Harrison........ 89, 632, 636, 639, 713
Ashley v. White ............6..2ecee seen ee 6
Aspdinv. Austin.........- ++ 315, 823
Aspinwall v. Blake + Bee

Astley v. Gurney...
Astley v. Weldon....
Atkins v. Humphrey
Atkinson v. Jones.
Atkinson y. Lord B
Atkinson v. Nesbitt
Atkinson v. Newcastle, etc., C
Atkinson vy. Patton

   
   

  

  
 
 
  
  
 
 
 
 
  
 
 
 
  
 
 
 
 
 
 

 

Bailey v. Finc
Bailey v. Hope Ins.
Bailey y. Hyde....

Bailey v. Johnson
Bailey v. Woo
Baillie v. Kell
Bain v. Case..
Bain v. Fothergill
Bainbridge v. Neilson.
Baird v. Tolliver......
Baker v. Bache...
Baker v. Brown

 

.| Barrell v. Joy...

 

Baldwin v. Berrian....
Baldwin v. Briggs ..... ..
Baldwin v. Monro..........
Baldwin vy. Soule.......
Baldwyn v. Girrie ...........2..eeee es eeee
Bales v. Wingfleld...........

Ball v. Bruce i
Ballard v. Noakes.... ...
Ballentine v. Robinson
Ballou v. Farnum..... i: 3 aise!
Baltimore, etc., Ins. Co. v. D ple... 4!
Baltimore, etc., R. R.Co. v. Blocher, 58,
Baltimore, etc., R. R. Co. McDonnell...
Baltimore, etc., R. R. Co. v. Shipley, 76,
Baltimore, etc., R. R. Co. v. State, 96, 108,
Baltimore, etc., R. R. Co. v. Thompson,
Barnfield v. Massey... ....

    
   

   
 
  

 

  
    
  
  
  
  
   
  
 

Atkinson v. Scott............... 5 ie Bamford v. Harris......
Atkisson v. Steamboat Castle Garden.27, 395 | Bank v. Bowie .
Atkisson v. Stephens........ edereioserestons 403, 473 | Bank v. Hatton ai
* Atkyns y. Kinnier. ...... . 00 2s... eeee 211 | Bank v. Rosevelt.............0005. cseee eee
Atlantic & Gt. Western R. R. Co.'v.. Bank of Manteermery v. Reese.. ........ 16.
RUIN i csccacidicceeaia card srivuarntel eatanere ‘ . 63| Bank of United States v. Magill...... 217, 340
Attack v. Bramwell.............. Bankhart v. Houghton - 141
Atterbury v. Jarvie.............. Banks v. McClellan........ Shine aoe + B22
Attersol v. Stevens .............. Banks Vis. Pik. i. ccsistsacaewese siatmieaceie aes 169
Attorney-General v. Hatton Bannerman v. White........ ... .... .... 264
Attorney-General v. Hull........ Bannister v. Hyde.............2- c00 wees 525
Attorney-General v. Tomlin Banton v. Hoomes...... Sella ahi ~aibra ets 175
Atwater v. Schenck.................000005 Barb vy. Fish .......... give Soke alanis aly enetg 510
Atwood vy. Taylor..............ceeceee Barber v. Backhouse ................... . 47
Atwood v. Union, etc., Ins. Co Barber v. Barber..............6. 0 seeeeeee 631
Augustine v. Challis ............ , Barber Vv, Brown............00s2s0000+ 552, 554
Auriolv.Thomas. . ............ .+.- Barber y. Lesiter....... 91, 567, 614
Aurora City v. West............. ciseats Barber v. Trustees.....
Austen vy. Willward.... ..........-4. Barbour v. Nichols....
Austerbury v. Morgan........... Barbour Co. v. Horn.................00005
Austin v. Hilliers........ ........ Barclay v. Gooch ...... ........4.. As ica
Austin vy. Innis. ..) .._... ...... Barclay vy. Kennedy............ .....
Austin v. Manchester Ry. Co Bardwell vy Lydall....... ...........
Avery v. Bowdero ..........26. 65 ee eee 244 | Barelli v. Brown ............. ts
Avery V. Brown ow. cece cece seen eee eens 171 | Barfield v. Loughborough
AVERY Wi RAY secitapcceaceletior aa aasreawatnaecne 146 | Baring v. Corrie ..... 0... ec e eee eee
Ayre v. Craven. Fe eae SER 616, 682 | Barker v. Angell..... Laumanemaenanclas wae
Ayres V. Covill..... cc ccee cence eee eee 152, 154 | Barker vy. Braham.... .............. 2...
Ayres v. Elborough.........-....22-.eee eee 575 | Barker v. Dixie.... ... 2. .....0-.
Ayres v. Hartford Ins. Co... ... .... 252, 446 | Barker v. Green......
Azemar vy. Casella...........-:cseceeeceeen 264 | Barker v. Windle......
Barkley vy. Kempstow..
Baber v. Harris........... Dee eeauermiins tee Barnard v. Conger .....
Babbage v. Babbage & Manning... ...... Barnard v. Gostling....
Babbit v. Riddell......... gia > ater ae Barnard v. Hamilton........ ...........05
Babcock v- Gill............0.2000e 3 Barnes v. Bruddell............ 0.0... 00
Backenstoss v. Stahler............. Barnes v. Hathorn............00.. 000 ues iv
Backhouse v. Bonomi............ 3 Barnes v. Prudlin. ................... 628, 712
Backhouse v. Ripley......... Bear06 We WW ANG wsissc. can peoaaransvenanevne 97, 99
Bacot v. Keith......... Barns V. WebDissvisssaacave. ca aenias veces 151
Baddeley v. Morllock Barnett, BX part@cicccssa cevecieies ss san 197
Badgley v. Decker. Barnett v. Reed .......... 58
Badgley y. Heald. Barnett v. Thompson... 488
Bagby v. Harris Barnette v. Hicks ....... ... ... TDL
Bagley v. Peddi Barney v. Burnstenbinder........... .... 894
Bailey v. Clay. Baron ¥. Placide.. 22. wcceeci eeevuace

Barratt v. Collins

  

Barrett v. Long .... ...
Barrett v. Partington

Barringer v. King
Barrow y. Arnaud
Barrow’s Case........
Barrows v. Carpenter
Barry v. Croskey.
Barry v. Rush......
Barstow y. Robinso

 
TasLe oF Cases.

    
  
   
   
    
  
 
  
 
  
 
 
  
   
 

PAGE
Barthelemy v. People................ 642, 647
Bartholomew v. Markwick...............
Bartlett v. Blanchard ....... 16, 248
Bartlett v. Holmes ........... oe 33) 160
Bartlett v. Marshall... « 217, 226

Bartley v. Richtmyer .
Barton v. Dunning....
Barton v. Glover...........
Barton vy. St. Louis, etc., R.
Barton Coal Co. v. Cox..
Bartowv. Brands... ... ....
Basebe v. Matthews and Wife
Bash vy. Sommer.
Bassell v. Elmore . 5
Bassett v. Salisbury Mf;
Bassett v. Sanborn
Basten v. Butler ..
Basye v. Ambros
Batard v. Haws..
Batchford v. Col
Bate v. Burr .....
Bate v. Hill ......
Bate v. Pane...........
Bateman v. Goodyear
Bateman vy. Lyall......
Bates v. Courtright ...
Bates v. Hudson
Bates v. Starr

. 657, 658
... 48)

 

 
  
 
 
 
  
  
   
     
    
 

Battishill v. Reed ... 141, 54’
Batson v. Donovan.......-.... 393, 412
Banbury Union v. Robinson . 718
Bann v. Dalzell .......... ... « 229
Baum v. Clause............ 161
Baxendale v. G. E. Ry. Co. 411
Baxendale v. G. W. Ry. Co.... .......... 382
Baxendale v. L. C.& D. Ry. Co.. 126, 133
Baxendale v. L. & S. W. Ry. Co 382
Baxter v. Bradbury eae 54, 286, 288
Baxter'V: Taylors sssicsiscaisse sees) sntresiinnicss 543,
Bayliss v. Fisher .. - 518
Bazin v. 8.8. Co.......

Beach v Bowery Ins. Co 452
Beach v. Ranney .... - 627
Beach v, Wheeler... 574
Beal v. Hayes....... 202
Beal v. Marchais.... 95
Beale v. Roberson. . 571
Beals v. Guernsey. 227
Bearden v. Smith...... 208
Beardmore v. Carrington......... ....... 748
Beardslee v. Horton...............--. 15, 225
Beardsley v. Brigham. 150, 618, 620, 630
Beardsley y.. D’ Arey: os c.0.c0s0c00 14 ia cease 187
Beattie v. Lord Eburg.. »- 129
Beauliat Vo Parsons. accuses ocesaeneins nes 751
Beaumont v. Greathead .. 18, 331
Becher v. G. E. Ry. C 4),

Beck v. Carter
Beckham v. Drake...
Beckwith v. Griswold..
Bedford v. M’Kowl ....
Bedingfleld v. Onslow. .
Beebee v. Robert... ..
Beech v. Jones ...

Beechey v. Brown..
Beehler v. Steever,
Beer v. Beer

 

 
  
  
 
 
 
 
 
 
 
 
   
 
  

Beeston v. Collyer
Beggarly v. Craft ..
Behrens v. G N. B:
Belcher v. Lloyd .
Belcher v. McInt
Beldon v. Nicolay..
Belfast & Ballymen: %
Bell v. Bell & Marquis of
Bell v. Cunningham:
Bell v. Free...

Bell v. Hayden.
Bell v. Howard.
Bell v. Midland
Bell v. Morrison...
Bell v. Parker..

     
  
    

. v. Key:
Anglesea

 

244 Bell v. Puller..

7 | Bement v. Smith. .

‘| Bennett v. Benne

2 | Benson v. Dunca

24 | Betts v. Gallais..

 

XXXVii

Bell v. Pearcy......

 
 
 
 
   
  
 
 
 
 
 
 
  
 
 
  
   
 
 
 
 
 
  
 
 
 
  
 
  
 
 
 
  
   
 
 
  

Bell v. Smith..
Bell v. Ursury....
Belshaw v.‘Bush...
Belton y. Baxter ..

Bench v. Merrick ....
Bender v. Fromberg
Benjamin v. Storr.
Bennett v. Bayes

Bennett v. Hyde
Bennett v. Jenkin
Bennett v. Olcott

 

   

Benson v. Frederic
Benson v. Schneider
Bentley v. Fleming
Benton v. Fay.....
Benziger v. Miller.
Bequette v. People’s Tran

 

Bernstein v. Baxendale .
Berrington v. Phillips ...
Berry v. Da Costa....
Berry v. Dryden..

Berry v. Dwinell ..
Berry v. Stinson ..
Berry v. Wallace...
Berry v. Wisdom..
Berryhill vy. Wells.
Berton y. Lawrence..
Berveridge v. Welch...
Besson v. Southard .
Best v. Hill
Besten v. Butter..
Betteley v. Stainsby
Betts v. Burch ..... ..
Betts v. DeVitre .

Betts v. Lee
Beuck vy. McGregor ..
Beveridge v. Welch .. 5
Bevan, Ex parte.....0 .....26.. eee eee eee
Bevin v. Conn. Mut. Ins. Co
Bibb v. Saunders
Bickell v. Colton
Bickerdike v. Bollman...
Bickford v. Page
Bicknall v. Waterman...
Bierson v. Edwards
Bieten v. Burridge........
Biggins v. Goode...
Biggs v. Daquin ..
Bignell v. Clarke

  
 
  
 
 
 
 
  
       
 
 
   

Billingay v. Billingay & Thomas.......... 669
Billings v. Vanderbeck... ..............-- 240
Billings v. Waller .............-0. cease eee 641
Billingsley v. Groves........ 0 ..+.- re 750
Billingsly v. Cahoon........ Pade Ba ig aero 215
Binks v. Sou. York. Ry. Co.. --. 98, 99
Binnse y. Wood.. 225

Birchard v. Boot!
Bird v. Gill ...
Bird v. McCoy .
Bird v. McGahe;
Bird y. Randall ..
Birgheim v. Blaenavon Iron Co.
Birkett v. Willan .
Birks v. Trippet .
Bisbey v. Shaw ..
Bishop v. Church
Bishop v. Sniffen.
Bishop v. Tucker.
Bishop, etc., Colong v. Edgerton
Bishop of Exon v. Freake

Bispham v. Pollock......
Bissell v. Cornell...
Bissell vy. Hopkins .
Bittleston v. Timm
Bixby v. Brundige .
Bixby v. Dunlap....

 

 
XXXVili

TasLe or CasEs.

 

PAGE. : PAGE.
Bizzell v. Stone ...... secces seecceees 172, 179] Bostwick v. Hawley....... cccseeeeeeeen ee 632
Black v. Camden.... Sait inlet 896 | Bostwick v. Nickelson..

Black v. Baxendale..

Black v. Carrolton R. BR. Co... .. ...... 80 Bottomley v. Brooke..
Black v. Goodman. .
Black & Co.’s Case..

lackburn v. Smith.
lackford v. Dod ..

Boh

 

age v- Stuart....

Blagrave v. Briston Water-Works Co .... 110
Blair v. Street ....... 736

Blake v. Burnham

Blake v. Exchange, etc., Ins. Co...

 

lackwell v. Acton....

 
 

  
 
  

 
 
  
 
 
 
  
  
    
 
    

usriora eee ULI) 400 | Botelar v. Bell... .....

 
  
 
 
 

sis.a's ain aR ea alae 228 | Boulterv. Ford. ..........00+ ceeeecee

Par Giaiasteia saree sisistaiaia 183 | Boulter v. Peplow....... 432
wis Wircale shesieeraseinis: aeeiayia’s 282 | Boulton v. Reynolds ...... -- 536
583 | Bourland v. Hidson... -.- 646
83 | Bourne v. Stout........ 576, 579

621, 623 Bowelsn Ta Sass 48,

owen v. Fenner ... sage
150, 151

Bower v. Hartley..

 

Blake vy. Lawrence.... ..............+. . 344] Bower v. Hill... i

Blake v. Midland Ry. Co..... 601, 676, 677%, 735 | Bowers v. Nixon.. . 738
Biakee PHI scasannasenciwaerads nee es 282 | Bowring v. Shepher -- 43
Blake v. Pilfold. .. 621} Bowser v. Cessna... - 275
Blakeley v. LeDuc. 108 | Boxham v. Wagstaff 828
Blakeley v. Ruddells.. 486 | Boyce v. Bayliffe..... 70, 87, 94

Blakesley v. Smallwo

Blanchard v. Ely..

   
 
 

  

  
 
 
  
 
 
  
 
 
 
 

180 | Boyce v. California Stage Co.............
25 | Boyce v. Douglass .... .....

 
 

 

 

Blanchard v. Mor: 950 | Boyd V. Bitt.........ccce cs eccen ees ee ee neee
Bland v. Bland . .... 747| Boyd v. Mangles.......-+--+--.0sseeeeeeeee
Blaney v. Hendr 225, 228 | Boyers V. Pratt.........-2eeeeeree cee tees
Blanks v. Smith. .... 169] Boyle v. Brandon...... ......+.  -+ee+s
Blass v. Gregor.. 572, 584 | Boyle v. Parker...........-+-+-2+++-

Bleaden v. Charle .-.. 124| Boynton v. Dyer

Blickenstaff v. Perrin. . 150, 218] Boys v. Ancell..... .....ee eee e ee ee ne ee
Blithe v. Topham............eseeceeeeeeee 99 | Boys v. Pink ....... a cciofajsioioinjaie wageve Rae MES 413
Blizard vi Kelly. cccsaccccscane ees ceern’ 569 | Bracegirdle v. Bailey..

Block v. Hbner............5-26500 ceeeeees 176 | Bracegirdle v. Orford.

Blodgett v. Brattleboro... ............ 58, 147 | Bracket v. McNair ......--

Blodgett v. Gardner ............... ..0.. 220 | Brackett v. Sears .......... 6. 0 «es si atorevee 172
Blofeld v. Payne.... a sp peameavaels .. §8| Bradburn v. G. W. Ry. Co....... 155, 601, 678
Blogg v. Johnson..........-...-- .. 227, 228) Bradford v. Freeman ......... veeeee oe 184

Blood v. Enos.....
Bloss v. Plymale..

Bloxam v. Hubbard.

  
 
 
 

sheieuee 308 | Bradford v. Manly.....-...-......
seen ee aceon te eees 146.) Bradley v. Angel.....-... ..--
sanasule 503 | Bradley v. Davis ....

  
 
 

Blunt v. Little....... .... . 572, 573 | Bradley v. Gibson ..................45

Blunt v. McCormick........-.......-.004. 138 | Bradley v. Heath ....
Blunt v. Williams. .

Blyth v. Carpenter...
Blyth v. Smith....

Blythe v. Tompkins.

Bonsfield v. Lawford .

Bonta v. Miller.
Booge v. Pacific
Boodle v. Cambell
Boorman v. Nash
Booth v. Briscoe
Booth v. Clive...
Booth v. Coulto
Booth vy. Hutchins

Booth v. pores ae
ooth v. Spuyten Duyv:
Bornman vy. Boole a
Borradaile v. Brunton
Borries v. Hutchinson.
Borries v. Ottoman Ban!
Bostick v. Rutherford....
Boston & Albany R. R. Co. v. Shanly.... 394 | Bridge v. Wain

 

  
 
 
  
 
 
 
 
  
 
  
    
    

 
 
 
 
 
 
 
 
 
 

  
   
   

i iaselaKeis wi epaibve aches 149 | Bradley v. Miller..
Baharia ceieicle sia 258 | Bradley v. Rea......- ¥ 5
see eusiatcae 182 | Bradshaw’s Appeal.................
Steed seseps ress tckcnastoiets 61, 593 | Bradshaw v. Bennett ...........

 

 
 
 
  
   
      
    
  
 
 

 

Boardman v. Goldsmith.............. 61, 64| Bradshaw v. Branan............ tines, BLT

Boast Vi. Firth vcsssccssciacescacs vets ce eenee 308 | Bradshaw v. L. & Y. Ry. Go .. 73, 672
. Boddeley v. Mortlock........ 2.2.2.0... 655 | ‘Bradt v. Foster................ ~ 236

Bodily v. Bellamy ....................0 066 281) Bradt v. Tousley .... . .. 640

Bodley v. Reynolds...............+--02-26- 501} Brady v. Oastler......... 2.0... cece eee ee eee 247

Bodman Vv. Harris ...............2 02.0 eee 167 | Brady v. ee aes Ee rat cares teh afave, aces) -aubesea 10, 292

Bodwell v. Osgood............. 2.2... 00. 752 | Brady v. Whitney ..............2-.02.0 cee 510

Bodwellv Swan........... ..151, 618, 631, 643 | Braham v. Pope...............-. cece eee es 202

Boies v. Vincent . see avacses veer sane» 248'| Brainard Vz JONES iecceaecavane coenemees 2

Bois. Vi BONS. s-3 sss ses evceeessessews coeedee 423 | Brainerd v. Brackett ................ 0.04.

Boland v. Mo. R. R.Co...... oss. e eee ee 102 | Braithwaite v. Coleman....

Bolivar Mf’g Co. v. Neponsett Mf’g Co.. 542] Brake v. Corning ................

Bonafous v. Walker..........-. 02... e+ 608 | Bramley v. Chesterton...... ...... é

Bond v. Hilton........ -«..%, 12| Branch v. Wilson. .- ............ cae eee 167

Bond v. Lockwood.............. ..-. 221] Brandt v. Bowlby...........

Bond v. Wilder... .. ae HaiasatauaTesejathdials 537 | Brandt v. Foster.... see deta

Bonham vy. Sturton ........... cece eee eee 789 | Brangwin v. Perrot..........

Bonner v. Capley... . 218] Brannock v. Boulden

Bonney v. Seeley ..... . 429 | Brantingham v. Fay.........

Bonomi v. Backhouse. 592 | Brasfield v. Lee........

185 | Brass v. Maitland..
286 | Brayton v. Chase....
326 | Brazleton v. Brooks..................
Bredin v. Bredin ...............06.0 see eeee 561
oe Bredow v. Mut. Savings Institution ..... 490
594, 625 | Breen v. Seward. 17
.-.. 745 | Brewer v. Dew ....
3 Brewer v. Jackson
Brewer v. Norcross .
Brewer v. Tyringham...
Brewster v. De Fremery
Brewster v. Edgerley . a
Brewster v. Wakefield..................05 222
Brice v. Wilson .
: 182 | Brickett v. Davis..
667, 573, 581, 588 | Brickford v. Page

 

Boston & Salem Ice Co.v. Royal Ins. Co., 446! Bridges v. G. Junc. shdvstotacase chareiabcagiayee sie a
Tasix or Cass. XXxix

Paap. Paan.
168 | Bruce v. Burdet............0cee.eceececees 167

Bridges v. Smyth....

Bridgbam v. Tileson .

  
  
    

169 | Bruce v. Hunter .

  
  
 
  
 
  
 
 
  
 
  
 
  
  
 
  
  
 
  
 
 
  
 
 
 
 
  
  
 
  
   
  
  
  
 
  
 
 
 
  
 
 
 
 
    
 
 
   
  

 

 

pate v. Hopkins 149 | Bruce v. Jones..

Brierly v. Kendall 520 | Bruce v. Pettingi!

Briggs v. Byrd . 620 | Bruce v. Rawlins ..........

Briggs v. Evans 658 | Brunbridge v. Whitecomb
129 | Bruner's Appeal.....

397 | Brunswick v. Slowman.

Briggs v. N. Y. R. R. Co
487 | Brunt v. Midland Ry. Co

Briggs Iron Co.v. North Adams Iron Co.,

  

 

 
 
  
   
 
     
   
  
 
 
  
   
  
 
  
   
 
  
 
  
   
 
  
 
   

 

Bright v. Rowland ............ 201 | Brunt v. Schenck

Brighton Arcade Co. 183 | Bryan v. Clay...

Brinkerhoff v. Olp.. sc Sbeseiate - 202] Bryan v. Smallwo

Brinckerhoff v. Phelp: 53, 275, 281 | Buchanan v. Findla

Brine v. Bazalgette..............-.ee eee 624 | Buchanan v. Leerig

Brinley v. National Ins. Co .............. 445 | Buckland v. Johnson

Brinsmead v. Harrison ...... Buckle v. Knoop....

Bristol v. Tracy............ Buckles v. Bewes .

Bristol, etc., Co. v. Gridley. 30, 7 Buckley v. Pirk...... Baie

Bristol (Dean and Chapter) v. Jones .. 377 | Buckman v. Davis........... ...eseeneese 226

Bristowe v. Needham ...................- 181 | Buckman y. Lathop ............-. 0.0800

Brite v. Giles esses csce ae, caccieeese sees 149] Bucknam y. Nash..........0. 26.020: eeeee

British Columbia Saw Mill Co. v Nettle- Buel v. N.Y. C. R. BR. Co.. i ie
BHipsesciacwemase eee weds Sa gated 15, 42, 400] Bufflum v. Deane... ....... cece e ee ee 1

British, etc., Ins. Co. v. Moffatt Buford v. McLung...... sib aati

Britt v. Hays ....... 2.2.02... Buhler v. Wentworth............... ..205 64

Brittain v. Allen ... ....... eg 20 | Bulkeley v. Smith ..............0 sees eens

Britton v. Turner ......... ‘ Bulkeley v. Welch...........0. see eee eee 168

Broad 8. Baa vascsscereesees sanraass ese 574] Bulkley v. Keteltas..

Brock v. Gale........ fe Bullard v. Dopsey .. .........---22-200005 169

Brockway v. Clark ... 0.2.0 6.26... eeee eee 220 | Bullock v. Lindsay...............0. seen ee

Brommage v. Prosser.... Bulman v. Birket.............000.00s eee ee 174

Bromley v Wallace ......... 66 | Bump v. Betts..... Sis

Brook v. Louisiana Ins. Co .... 463 | Bunbury v. Hewson............2. ce eeeeee

Brooke v. Bridges............. Bunnell vy. Greathead................ -...

Brooke v. Clarke........... .- .... 73] Bunny v. Hopkinson . stoeraetees sista

Brooke v. Stone ............ . Bunsdon v. Austin.............0c.e eee eee

Brooks v. Bemiss... ws 8 | Bunting v. Ricks... ..............eeeee eee 169

Brooks vy. Blain......... Burdett v. Withers .

Brooks v. Boston .... ... .... 542] Burdon v. Webb.....

Brooks v. Warwick ..............-+.. Burford vy. Wible...... at

Broome v. Rice .............656.0 ee eee 732 | Burges v. Nightingale............ .......-

Brotherston v. Barber... ri Burgess v. Merrill..........2..... eee eee

Brow v. Hathaway...... . 616] Burgett v. Burgett ........... ....... eee

Brown v. Allen........ ... 60, 725 | Burgwin v. Babcock..............-.... 6+

Brown v. Amyot.......... . 358 | Burhans v. Sandford.............2...00005

Brown v. Barrington . . 354] Burk v. Webb..........-. cece ee cee eee eee

Brown v. Barwick .... . 484] Burke v. Brig M. P. Rich.......... .....

Brown v. Bellows .. . 203} Burke vy. Miller................eeeeeee eens

Brown v. Bigelow ... 541 Burkett v. Lanata ...... i

Brown v- Brooks.... 50 | Burkhart v. Lappington ..................

Brown v. Brown........-...-s2sseeeee 168, 513 | Burley v. Bethune .... ......-..-ee cece eens

Brown v. Chadsey....... -. 61, 64, 593, 764} Burn v. Morris....... salts. 436%

Brown vV. Co0k | isecce0c sess cscceavessacece 486 | Burnaps v. Mowry..........seeeee esse ees

Brown v. Emerson
Brown v. Foster...
Brown v. Glen.....
Brown v. Goodwin
Brown v. Haynes
Brown v. Ilius.

Brown v. Kimball.
Brown v. Lakeman
Brown v: Lunt

Brown v. Lynn..
Brown v. McClela
Brown v. McIntyre
Brown vy. Maulsby.
Brown v. Muller

12 | Burnby v. Bollett..
.., 23] Burnett v. Thomps:
525, 535 | Burnett v. Lynch
.. 662} Burney v. Pledger .
492, 505 | Burnham v. Robert:
... 109} Burns v. Erben
08, 312 | Burnside v. Gra
... 567] Burr v. Todd.....
- 219] Burr v. William:

109 | Burrage y. Crump
. 227| Burrell v. N._Y., etc., C
. 58& | Burrough v. Moss..
. 202 | Burrows v. Erie R. R. Co,

 

 

 

 

. 251| Burrows vy. March Gas Co..

 

 

  
  

 

 

Brown v. Murray i . 614| Bursley v. Hamilton ..........- Selsey Ste oo. 148
Brown v. N. Y., etc., R. R. Co............ 105 | Burt v. Dewey..........-..2006- sisparestasiare -. 264
Brown v. Orvi .. --. 152] Burt v. Dutcher ...........seeeseneee secon 488
Brown v. Price...... wees. BIT | Burt v. MCBain..........eccceeseeecenecens 620
Brown v. Royal Ins. Soc...........5..005 442 | Burtis v. Dodge .........ceeceesceeceenn ens 229
Brown v. 8S. & D Ry. Co.. ~ wee. 9] Burton v. Chinn..........2..--eeeeee w. 179
Brown v. SCyMOTe ..........: eee eee neces "89 | Burton v. G. N. Ry. Co........-----eeee ... 316
Brown v. Smith........... cseceeceeeee .-. 640 | Burton v. Le Gros......... eee eee eee seer. 523
Brown Vv. Stapyleton..........2.00eeeeeree 469 | Burton v. Pinkerton. . 81, 17, 87
Brown vV. Tibbits....-.-...c0eeccsesecreeee 174) Burton v. YOunNg..........2sceeeeeeeee ee i
Brown v. Woolton.. . 511, 780} Bush y. Canflield............00556 cone 249, 259
Brown v. Wilkinson . see. 599] Bush v. Prosser .. 148, 149, 152, 154, 616
Brownell v. McEwen..........-0e.0.seee0e 165 | Busst v. Gibbons........-.....208 eee 581,
Browner ¥v. DAViS. ......05 vecisescaaies iis . _%| Butcher v. Norwood...... .. ‘ j
Browning Vv. Nowman......-c.eeessseeeees 711) Bute v. Thompson............

Broxham v. Wagstaffe ......... ..seesees . 828 ' Butler v. Basing ..............cseeeeees 32 402
   
  

 

  
 
 
 

xl TABLE or Caszks.

PAGE PAGE.
Butler v. Collins ..............005 «eseecees 516 | Carson v. Marine Ins. Co.............0066
Butler v. Knight ............0..cccceeceees 611} Carter v. Bennett..........6. cece cee eee ee
Butler v. Mehrling.............-02+eeeeee: 5383 | Carter v. Carter..
Butt v. G. W. Ry. Co......... 2. cece eee ee 409 | Carter v. Corley..
Butterfield v. Union F. Co...... .......- Carter v. Cutting.... ............ eee e eens
Butters v. Olds........... Carter v.G.W. Ins. Co.
Butterworth v. Peck Carter vy. Towne..........

   
 
 

 

Buxton v. Cornish....
Byne v. Moore

  
  
 
 

   
 
 
  
 
  
 
   
 

 

  
   
  
   
  

 
 
 
 
 
 
 
  
 
 
 
  
   
 
 
       
  
 
   
    
   
 

Cartwright v. Greene....
Caruthers v. Graham................02065

Byram v. McGuire . Cary v. Whitney...........- 00. cece eee e eee
Byrd v. Boyd....... 5 | Case v. Davidson.... ........cee rece cree ee 45)
Byrket v. Monohon...... 0.2.0.0. sseeeee oe 155 | Case v. Henderson .........0..0.0eee ee ee ee
Byrne v. Mercantile Ins. Co...... ....... 465 | Casparson v. Sproule.
Cade v. Redditt..........cccceseescesseees 647 | Casper v. Thigpen...
Caddy v. Barlow «..........:eceeee eee eeee 566 | Caswell v. Coare....
Cady v. All@n.... 2... .ceeeeec eee eee eee 122 | Caswell v. Wendell......... ...--
Caftrey Vi Darby. wccswessinwanecs 4 os isagren 700 | Cates v. Kellogg..............-.-
Cahen Vv: Platt. .0icces sce cice eves seeeneee 241 | Catlin v. Valentine
Cahill v. Dawson 702 | Cator v. G. W. Ins. ©
Cahill v. L. & N. W. Ry. Co .............. 413 | Cattel v. Warwick.............. :
Cahill v. Patterson.. .........--..2-.0005 304 | Cattley v. Arnold... : ..- 858
Calcraft v. Lord Harborough.... 163, 666, 668 | Catton v. Wyld... 58, 760
Caldcleugh v, Hollingworth........... .. 487 | Causee v. Anders... 60, 592
aldeck vy. Boon.... 135 | Cavanaugh v. Austi . 621
Caldwell v. Roberts . . 750} Cavender v. Guild. .. 220
Calhoun v. M’Means . 646 | Cavendish v. Geaves 189
Call v. Allen.... . 147] Cawden vy. Wright ..... de ASesitiei eae We 58
Callahan v. Bean.. 478, 102 | Cawdor (Earl of) v. Lew: 187, 552, 554
Callahan vy. Caffarat. .. 574] Centerv. Spring ......... 572, 581, 583
Callard v. S. E. Ry. Co .. 69] Cent. R. R. Co. v. Crag’ --. 107
Calloway v. Middleton 149, 643 | Chadwick v. Trower..... -- 722
Callwell v. Callwell .............eeeee eee 669 | Chalie v. Duke of York 225, 228
Calton v. Bragg...... 224, 228} Chalmers vy. Shackell..........2.-.+..2-5+
Cambrian Stm. P. Co., Ex parte. 51, 84} Chamberlain v. Farr ..... ites BAL SeRENS 240
Cambridge v. Anderton ............ ...6- 456 | Chamberlain v. Smith ........... .. wee 225
Cameron Vv. Fletcher ..............-..0000- Chamberlain v. Williamson..... 674
Cameron vy. Smith ............... 224, 342, 745 | Chamberlin v. McCallister . 824
Cameron v. Wynch hea: saat Severe Chamberlin v. Morgan .. Sesh
Camfield v. Bird............. cece ceeeeenee Chambers v. Caulfleld.. 665, 746, 749
Campanari v. Woodburn .. 681, 706 | Chambers vy. Lewis..............20 cee eees 170
Campbell v. Butts........ .. 639, 640 | Chambers v. Robinson .......... 579
Campbell v. Fox ........-cceeeeeeeceeeceee 168 | Champion y. Vincent........ 7, 11
Campbell v. Genet...........2. 0. ec cece eee 169 | Chandler v. Doulton......... = 531
Campbell v. Lewis . ................ee eee "21 | Chandler v. Parkes........ .... 728
Campbell v. O’Bryan..................2 05 572 | Chandler v. Thurston........... 0.2.2... 304
Campbell v. Spottiswoode........ ....... 647 | Chapel v. Hickes........
Campbell v. Threlked..... ... .. 572, 576 | Chapin v. Norton .. s
Campbell v. Thompson.................5+ 402 | Chapin v. Siger............. ee ce ec ee eee ee
Campbell v. Woodworth .................. 516 | Chapman v. Benson..................05005 45)
Canal Co. v. Bentley........... va a siete sth cal 108 | Chapman v. Calder.....................0.

  
 
  
  
   
 
 
  

Canal Co. v.. Gordon...
Canal Co. v. Rowan
Candee v. Webster .... ...........
Candler v. Petit...................- a
Cannan v. Reynolds ..........-........- - 145
Canning v. Williamstown... :

Cannon v. Beggs........ ...
Capp v. Tapham .
Capper v. Forster. .
Capron vy. Capron..
Cardozo v. Hardy.. i
Care v. Webb....... steiseonio sacrece ss 185
Carl ¥. Ayers exis ccsicuaisimesind bee savas
Carlisle-v. Burley.... 510
Carlisle v. Sheldon............. :
Carlyon v. Lannan............-0...e cere 492
Carmichael v: Waterford & L. Ry.C ....
Carnes v. Nesbitt.................e cee e eee 212
Caroon vy. Rogers.... . ‘i
Carpenter v. Brand...
Carpenter v. Leonard. .
Carpenter v. Lockhart.... .. epcishagalchagery
Carpenter v. Providence, Wash. Ins, Co
Carpenter v. Wall

  
 
   
   
 

Moore .......
Carr v. Roberts.
Carroll v. Welch
Carson v. Barnes

28 | Chicago vy. Starr

 

  
  
    
   
 
  

Chapman v. Dease..............-.--02000+
Chapman v. Ordway as
Chapman vy. Rawson
Chapman v. Woods. ue
Chapman vy. Wright..................20005
Charington v. Laing
Charles v. Altin........
Charlier v. Marshall....
Charlton v. Driver.....
Charlton v. Walton
Chartran v. Schmidt.

Chase v. Allen.......

Chasey, DOWes sos cess vxcnwren.cw oe sieeic. 219
Chasemore y. Richards.......... 8
Chatfield & Wife v. Comerford . 581
Chauncey v. Yeaton........... -.. 500
Cheadle v. Buell....... Gstcle eee 651
Cheddick v. Marsh ............ 199, 206
Cheminant v. Pearson ........ .......... 467
Chenowith v. Hicks ....... ........ 200005 750
Cherry v. Thompson... .................. 189
Cheshire Turn. Co. v. Stevens............ 138
Chesterman v. Lamb ........ ...........- 267

Cheveley v. Morris.... ...
Chicago v. Jones ....
Chicago v. Langlass.

hicago, etc., R. R. Co. v. Clark
hicago, etc., R. R. Co. v. Flagg....
hicago, etc., R. R. Co. v. McKean
hicago, etc., R. R. Co. v. Murray ......
hicago, etc , R. R. Co. v. Wilson. . ‘
hild v. Homer ................ jest inaies Xe 158

 

lelelelelele)

 
Tas_e or Cases.

   
  
 
  
 
 
 
 
  
  
  
 
 
     
 
 
   
  
  
 
  
  
  
  

 

 

 

  

 

Childers v. Deane..... Cobb v. Carr...
Chiles v. Drake . Cock v. Ravie...........
Chilton v. Carrington Cockburn v.
Chilvers v. Greaves Cockcraft v. Muiler
Chino v Morris. Cocke y. Jennor..
Chinnery v. Viall Cockerellyv. Van Di
Chinnock v. Marchione: Cockersham v. Nixon..
Chipman v. Coo. Cochran vy. Miller
Chippendale v. “Tom Cochrane v. Gree
Christy v. Row............ Cody v. Raynaud
Chubb v. Gsell ....... Coe v. Smith..
Chumasero v. Gilbert . Coffin v. Anderso:
Churcher vy. Stringer............ 0.0.0... Coffin v. Coffin.
Churchward v. Queen . Coghill v. Ch andler
Cincinnati y. Evans........ 0 ...........00. Coggs v. Bernard .
Cincinnati C. Co. v. * White L. T. Co... Cohen v. Morgan

agett v. Easterday Coil v. Wallace........... _
Clancey v. opariegh~ Colburn vy. Woodworth .
Cland v. Smith.... .. Colby v. Colby........
Clapham v. Shillito Cold poke V. BOODwisiictenscacesesas cena:
Clapp v. Glidden Cole v. Meek.....
Clapp v. Hudson River R. R. Co... Cole v. Perry
Clare v. Maynard 264, 265, 271 | Cole v. Ross.
Clark v. Bales...... 752 | Cole v. Sims..
Clark v. Barlow........ ‘ Cole v. Tucker ......- sashes. ©
Clark v. Binney.. Coleman y. Southwick 158, 751, 152
Clark v. Brown... Coles v. Bristowe ......... ...ce00 ee eeeee 246
Clark v. Cort..... Collard v. 8S. E. Ry. Co.. 24, 399, 401
Clark vy. Dales ..........--..5 6+ Collen v. Wright......... ~ «- 128, 129
Clark v. Dibble ......... .. Colley v. ens eenaten hares 365
Clark v. Draper........ .. .... Collier v. Gray........0 cee e cece eee eek etwec elt
Clark v. Eighth Ave. R. R. Co Collin v. Wright... isk iniananiiede nme eanecs 415, 484
Clark v. Fitch Collinge v. Heywood. icici tannenisfovaaesayn nat 419
Clark v. Gilbert Collins v. Baumgardner.................+ 27
Clark v. Gridley .. 752 | Collins v. Carr........ 2. --. 91, 110
Clark v. Marsiglia .- , 825 | Collins v. Seemed icc fa yotanan Sava erataiahalg' aioe a9 689
Clark v. Newsam.... 57, 519, 548, 592, Ba 725 | Collins v. Jones ...........6 cece eee ee ee 192
Clark v. Nicholson ..............5-06 , 526 | Collins v. Martin,......,.-..sssesseeeeee ee 347
Clark v. Pendleton.......... 753 | Collins v. Middle Level Commrs........ 107
Clark v. Pinney .. .........- 259 | Collins v. Price....  .. 1... eee eee eee nes 828
Clark v. Behool District. . . 809 | Collins v. Rybot.. - TT
Clark v. SEP PINS = +08 ataieungbtie . 690 | Collins v. Sabatier .............2. 0.2. eee 225
Clark v. Whitaker.......... . 750] Colt v. Brown. ...... 2.2.5. « 184
Clark v. Wilson............-- . 446 | Columbia Ins. Co. v. Ashby..........-... 413
Clarke v. Clarke.... .. . ..... . 669] Colvin vy. Jones............-. 395
Clarke v. Fell ..... 174 | Colwell v. Lawrence 200
Clarke v. Halford..............-- 515 | Colyer v. Huff ......... . 143
Clarke v. Hawkins...........-......--00es 184 | Combes vy. The Hundre 80
Clarke v. Postan......-. 569 | Comegys v. State...... 221
Clarke v. Roe ........... 721 | Commercial Bank v. J . 218
Clarke v. Seton......... 340 | Com. Ins. Co. v. Sennett » 444
Clarkson v. De Peyster . 221 | Coming v. Sibly.... - 187
Claxton v. Claxton 9] Comings v. Little ... - 295

lay v. Huston. Comwmings v. Bedbor . 862
Clayton v. Nelso: Commonwealth v. Bonner 642
Clegg v. Dearden.. Commonwealth v. Cutler. 3
Glezhorn v.N. Y.C Commonwealth y. Coutne: we. Bb4
Cleland, Ex parte. Commonwealth v. Guild ..........-...- . 642
Clemens v. Hannib 70 | Commonwealth y.Hide & L. Ins. Co... 448
Clement v. Lewis.. 731 | Commonwealth v. Norfolk... ..... ..... 751
Clement v. R. R. C 69 | Commonwealth vy. St. German........... 810
Clemmens v. Caldwell . 221 | Commonwealth v. work das neeas comands 616
Clerk v. Miall... ....0 cesses eee .. 631} Compton v. Compton........ css. cece eres 222
Cleveland v. Cieigens Gas Co.. .......... 8] Comyn v. Comyn..........eee eee eee rere eee 664
Cleveland, Bros He R. Co. v. Crawford... 106 | Concanen v. Lathbridge. Laat eae 603
Cleveland, etc., R. Co. v. EHD: salar 107 | Concord v. luraees seateesigs 173
Cleworth v. Soutord dosieipein < (an tole omew 160 | Concord R. R. Co. v. Greely..........+.- 226
Clifford v. Watts........---.06+ 334 | Condon v. Shehan........ --+-.-+-+ 169
Clifton v. Hoopec ........- 607 | Conforth v. Rivett ........... 0 sere seas 1%4
Clinton v. Hope Ins. Co. 452 | Conger v. Weaver ......-..- seereeeee oe 12
Clinton v. TI GEC Os scapes 9] Conn. Ins. Co. v. Cleveland BR. Co... 217
Clinton v, Myers.. 8| Connally v. McDermott.........-...e0e0ee 579
Cloon v. Gerry ...... 583 | Conner v. Henderson . . 270
Clopton v. Morris ......... ... 170| Connor vy. Bentley ........-.-. sees cece eene 528
Close v. Fields.............-. ... 225] Connorv. Hillier.. - 492
Clossman v. Lacoste...... ..+ «+++ 325, 326 | Connor v. Levy.... 162
Closson v. Staples 71, Conroe V. CONTOC....... cee eee eee eee cee eee 150
Clough v. Bond.........-. Conroy Vv. Flint....... 0-.scseesecseeeeeeee 9
Clough v. Clougb..... ...- Converse v. BurrowS...........-.eseeeee ee 239
Clough v. Unity... ....... cece sense rene 226 | Converse v. Citizens’ Mut. Ins. Co....... 453°
‘Clover v. Landon & Southwestern Ry. Go. 591| Cook v. Barkley ..........ceeeneee sence 149
Clow v. Brogden....... ...-cecececceeeee 867 | Cook y. Beal....... 739, '740
Coach v. Irwin..... ... Cook v. Brandies.........cccseeeeee ceeeee 240
Cobb v. Carpenter Cook v. Com. of Hamilton... ... ....... 36

 

 

*

  
 
  
   
 
 
  
 
  
    
    
 
 
   
   
   
 
  
  
  
  
 
 
 
  
 

 

 

 

 

   

 

 
  
 

  
 

xlii Tasie or Cases.
os
PaGsz. PAGE.
Cook v. Cook ...... sescoesereeesecees 510, 628] Crofton v. Poole ....... sista sievemeccaass 688
Cook v. Dela Graza........ cee ceee eee e wees ‘561 | Crofts v. Beale... a OF

  
  
 
  
 
  
 
 
  
  
  
  
 
   
 
 
 
  
 
 
 
 
  
   
   
   
 
 
 
 
   
 
 
   
  
 
 

Cook v. Ellis

Cook v. pee uate efetesdidee 478
C0ok Vi. Tiplt sscccecsitiwuc.s accrasaees 621
Cook v. Fowler.. 225, 227
Cook v. Hartle 162, 497
Cook v. Hill sean

Cook v. Lovell.
Cook v. O’Brien.
Cook vy. Patterson
Cook v. Walker. .
Coombe v. Sanso
Cooper v. Barber..
Cooper v. Shephard
Cooper v. Utterbach
Cooper v. Waldegrav
Cooper v. Young....
Coppin v. Craig.
Coppin v. Wal
Corby v. Hill.
Corey vy, Jane!
Corkery v. Hic
Cornell v. Jackson .
Cornell Bank v. Jones.

Corner v. Shew... ........... 684, aa 686, @
Corning v. Troy Iron Works..............
Cornish v. Cleife............. sence ee 361

Cornwall v. Richardson..
Cort v. Ambergate Ry. Co. ‘
Cortelyou v. Lansing................2.+ 3
COry Vi, SilCOR sa. cece arnies tana gs te aeeeee se
Cory v. Thames Iron W. oy 387, 51, 84, 256, 15)
Costigan v. Mohawk R. R "Co. , 317, 318, 822
323," 824," 895, 326
Cotheal v. Talmage............. .. .. 02.
Cotterell v. Jones
Cothran y. Hanover National Bank......
Cotton v. Browne 8
Cotton v. Reed....... cee cece cece ee eee
Cotton v. Wood . a4
Couch v. Steele... .........220.--+-
Couganv. Bankes. .. ... ... ... .
Couling v. Coxe
Coulthurst v. Sweet
Coursen v. Hamlin...
Cousins v. Padden
Covery v. Gra
Cowan ¥. Silliman.. ore
Coward v. Gregory... me igtaleSeiacas aed
Cowden v. Wright.........
Cowell v. Edwards
Coweta Falls Mfg. Co. v. Rogers
Cowing v. Cowing..............5045
Cowley v. Davidson . ie
Cox v. Adams..
Cox v. Burbridge
Cox vy. Cooper.
Cox v. Glue.
Cox v. Henr
Cox v. Rodba
Cox v. Spring.
Cox vy. Strode
Cox v. Walke:
Crabtree v. Hort:
Cram y. Aiken. . .
Cramer v. Burlington
Crandall _v. Dawson..
Crane v. Hardman........... +++ ie
Crane v. Hummerstone..........-..+- +.
Cranston v. Marshall.........-..++ it
Crawford v. Andrews
Craythorne v. Swinburne..
Creelman y. Marks.........
Creerey v. Carr............+
Criner v. Pike..............0
Cripps v. Smith...
Crisdee v. Bolton. .
Crist v. Brindle............, eee e ee ween eee
Croaker v. Chicago, etc., R. R. Co...
Crockford v. _ Winter

se fejegovete ts 14
«++ -54, 287, 288
“362, 310, 372
80

 

  

52 | Crouch v. L. & N.

5 | Dainty v. Brocklehurst. .

 

  
   
  
 
 
 
   
  
  
   
   
 

Pee i Donegall.
ropsey v. Murphy.
Crook v. McGreal....
ae ecg ar Mallory................--+ 302
Crosby v. Mason
Crosby v. Otis..

Crosby v. Watkins
Cross v. Button..
Cross v. Tome..

Crosskill v. Bower.
Crouch v. G. N. BR

Crowder v Lon
Crowther v. Ramsbottom
Cruikshank v. Conyer....
Sl eee Gerock

Crump v. Lambert . 8
Cuckson v. Stones. - 807
Culbertson v. Lennon......... ---+ . 172
Culbertson v. Stanley. . 650
Culbreth v. R. R. Co.........+. ++. - 108
Cumberland, etc., Ins. Co. v. pivell . 46
Cunning v. Sibly 6 ao
Cummings v. Cheshire Ins. Co... -.. 447
Cummings v. Nichols... .......- -.. 3806
Cummings v. Parks......... . 572
Cummins v. Williams.......... . 175
Curling v. Evans.... ..... . 606
Currie v. Cowles... ....-..:eecceeeeeeeee 186
Curry v. Com. Ins. Co.... 448, 452
Curtis v. Groat............- - 493
Curtis v. Hannay..... 264
Curtis’V.. Mussey -...:0scicseceecaseseee xs 647

'y
Curtis v. Rochester, etc., R. R. Co., 74, 76

   
   
  
 
 
 
   
    
 
  
 
 
  
      
    

 

20

5 598, 752, 754
490 | Curtis v. Ward.... ....---.---seeee eee 489, 500
2 | Cushing v. Drew.... .. .-..--.. oa 206, 212
145 | Cushing v. Longfellow. . 516
Cussons y. Skinner... 307
4| Cutler v. Close......... - 160
Cutler v. Middlesex F. Co 183
Cutler v. Powell. .....2. 22. sceeceee cece ees 308
Cttting v. Grand Tr. R. R. Co. « 27
168 | Czech v. Gen. Steam Nav. Co.. -. 409

Dabovich v. Emerich...,..... 3
Da Costa v. Newnham . 465, 467
Dacy v. Gay ... ....... -. 70
Dadd v. Crease. 631
eee v. Irwin........... 186
aggett v. Pratt .. 215
Dat ey v. Crowley.. i

Dailey v. Gaines..

650
Daily v. Litchfield... | a, ey ae

 

Dakin v. Oxley..........
Dakin v. Williams........

Dalby ©. India ei Lindon Lif
Dale v ‘Cook .
Dale v. Harris
Daley v. Norwich, et
Dalton v. Beers. .

Dalton v.S. E. Ry.
Dame v. Kennedy.
Damon v. Moore..

 

 

Dana v. Fielder. 248
Danforth v. Prat 10
Danforth v. Walke 241
Dangerfield v. Root 170
Daniel v. Anderson 8
Daniel v. Prather .. 513
Daniels v, Ballantine... , 70
Danube, etc., Ry. Co. v. Xenos 244
Danville, etc., Oo. v. Stewart. 53
Darbishire v. "Butler. Sisialstaiats +» 889

Darby v. Ormsby .. -.. 623
Darling v. Wooster. . 215, 217
Darnell v. Williams... we. BAT
Darrock v. Hay. 1i6
Darrose v. Newbott.........05 sosecccceee 132
TasiLE or Caszs.

 

PAGE.
Dart v. Sherwood............. (awe wommetee 1%
Davenport v. Lynch 660, 584
Davenport v. Russell..............0..00005 6

Davenport v. Ryland
Davenport v. Wills
Davey v. Mason
Davey v. Phelps.
David v. Conard...
Davidson v. Gwynne .
Davidson v. Monkland R
Davidson vy. Nichols..
Davidson v. Tullock
Davies v. pe ELrere
Davies v. Penton .
Davies v. Sollomon.. :
Davies v. Underwood....
Davis v. Ayres
Davis v. Barker.....
Davis v. Barrington .
Davis v. Burrell
Davis v. Cook
Davis v. Cutbush..........
Davis v. Freeman
Davis v. Garrett.........
Davis v. Gompertz
Davis v. Griffith.
Davis v. Haycock.......
Davis v. Hedger
Davis v. Holdship..
Davis v. McKinney. .
Davie wv, Man cc co cnincasiccwne
Davis v. Matthews
Davis v. Maxwell.. seek
Davis v. No. West. ‘Ry: “Co!
Davis v. Oswell
Davis v. Parker .......

 

  

  

Dayis v. Richard ete., Ins. Co

Davis v. oe GSODs ceeses6 4.2 ca euce a 248
Davie Ve ROM ssi cs cw wontpnonenos

Davis v. Shields  dsidivepemsneneinete

Davis v. Talcott..............- cee ee eee ee 85
Davis v. Thorne..... ....... 220
Davis v. Smith......... .. 555
Davis v. Smyth ....... .. 224

Davy v. Milford...
Dawes v. Gooch ..
Dawes v. Pinner ..
Dawson v. Collis .

Dawson v. Mid. Ry. Co
Dawson v. Morgan...
Dawson v. Wilson .
Day v. Porter.........
Day v. Woodworth
Dayhuff vy. Dayhuff
Dayton v. Dean
Deacon v. Allen .
Dean v. Blackwe

39
26, 227, 275
305, 306, 309

De Bernales v. W
De Camp v. Stevens.
Decker v. Hassell
De Clerg v. Mungin
Deering v. Winchelsea.
De Forest v. Fulton Ins. Oo.... ..

 

 

 

Defries v. Davis ....... ---.2---- 00-0 - 621
De Gaillon v. L’Aigle.............. sce eee i
Delaney v. R. R. Co......... eee eee oe 109
Delano v. Curtis ..... 146
De La. Rue v. Seon att esisiegh 02 ecient pe
Delavergne v. Norris.,...................-
Delegal v. Highley... S516, 589, 618, 622, 628, ay
Delegal v. Naylor ........-....0..-seeeeeee
Deloesv. Wyer.......0ssecceee ceeeee

De Mattas v. Saunders ..

De Medina v. Grove .... 0... ..eeesee eens ae

De Medina v. Polson...........2-200065 «+
Deming v. Foster.. 2

Deming v. Grand Trunk R. “RCo...
Deming v. Kemp
Dempsey v. Paige a
Denby v. Mose....... wisteerdenaeaaeraseaess 3

  
 

60 | Dennett v. se seNaet

8 | Dewitt v. Greenfield.

6 | Dickenson vy.

45 | Dickinson v. Maynard

332 | Dingle v. Hare

2 | Dixon v. Parks

3 | Dixon v. Smith

6 | Dockwray v. Dicki

3 | Dolph v. Rice

 

62 | Donald v. Suckling.

Denew v. Daverell....... ..........06. «- 160
Dengate v. Gardiner...

 
     
 
 
 
  
 
  
 
  
   
 
 

  

Derry v. Handley .....
De Tastett v. Crousillat.
De Vaughan v. Heath
Devendorf v. Wert..
Devereux v. Bur
Devitt v. Pacific R.
Dewell v. Marshall.

  
     

 
      
     
   

   
   
 

DeWolf v. Gecne
Dexter v. Spear ..

Dey v. Dox ........
Dibble v. Morris...
Dickason v. Bell.... ..
Dicken v. Shepherd}...
arrison.
Dickenson v. Segure
Dickey v. Andros..

Dickey v. McDonnell...........-
Dickinson v. G. Junc. Canal Go

 
   
    
 

 
 
 

  
 
   
   
   
 
 
  
  
 
 
 
    
 
  
 
  
 
 
       
  
 
  

  
 
 

N. E. Ry. Co

  
 
  

Dickinson v.

 

 

Dickson v. McCoy... ........ .eee-eeee oe 92
Dickson v. Reuter’s Telegraph Co....116, 418
Dickson v. Swansea V. Ry. Co........... 189
fits v. Langfitt 577

Digby v. AtKinson........-.........e sees 366

V PHU DSS iroe seaivicaaeen shes nemncantaaae 178
Dillawdt COMME siissiars os cones. letwyniemredoaecee 649
Dillon v. Anderson .........-........4 322, 325
Dillon v. Duley, coccenssseiven spa sacnee 21%
Dimech v. Corlatt.. aids 205, 209, 213
Dimes v. Petley oe 710
Dimmick v. Lockwood tiaw spay We) wie Redes 292

Disbrow v. Tenbroeck.

 

  
 
   
    
 
  
 
 
  
 
 
 
 
  

Ditcham vy. Bond....................... 65
Ditchett v. Rouyien Duyvil R. R. Co..... 107
Diven V. Phelpsiicess siwsnscnexeeoaanees ves 184
Dixon vy. Boll weaccs. vancacownensaaz esey 80, 143
Dixon v. Fawcus ........ .-.-... 66. eee 1

 

Dixon v. Reid..

Dobard vy. Nunez.
Dobbs v. Prothro ..
Dobson v. Blackmo
Dobson v. Dobson.

Dod v. Monger...
Dodd y. Hamilt:

7} Dodd v. Holme ..

Dodd v. Norris...
Dodge v. Bartol....
Dodge v. Brittain..
Dods vy. Evans....
Doe v. Davis...
Doe v. Filliter .
Doe v. Hare.......
Doe v. Huddart
Doe'v. Perkins: 3. isso: cesce cay samen ses
Doev.
Doe v.
Doe v.
Doherty v. Brown............
Doig v. Barkley
Dole v. Lyon
Doll v. Bchonebere .
Dolman v. Cook

Donahue v. Emery.
xliv TABLE oF OAasEs.

    
   
 
    
 
    
   
    
 
  
 
   
    
   
  
  
  
  
 
  
   
   
  
   
 
 
  
 
 
 
 
   

   
     
 

 

 

  
     
      
  
   
 
   
   
   
  
 
   
  
  
   
 
 
  
  
 
 
 
 
  
   
 

 

PAGE. PAGE
Donnell v. Sandford.....:........ «.+.+-+. 80 | Earl of Pembroke v. Bostock............-
Donnelly V. Baker. 0. c0is ec ci sa narcawun sens 744| Rarlev. Holderness........-+eseeresceccees
Doran v. O'Reilly... ab Sapeiciatiraeas .. 229! Earnest v. Brown..
Dorman Vv. AMES.........0 cece eee ee en cree 188 | Easley v. Moss ...
Dorsey v. Dorsey a> | eaedeaed a acetone 221) Eason v, Petnay....
Doud v. Fiedler .... sees cee eeee 248] Eason v. Westbrook .
Douge v. Pearce..... -. 151, 648} Basum v. Cato... 2.0.0... cece eee cece eee
Dougherty v. Dorsey ............. 0.0008 - 566| East v. Chapman...... .....022.-0- eee ee
Douglass V. Craig .........0--e seen eee ree 151| East Anglian Ry. Co. v. Lythgoe. .......-. 323,
Douglass v. Kraft ..........-.. cee eeee eee 488 | Eastburn v. Stephens... ............... -- 641
Douglass v Tousey.........+.2 sees 155, 751 | Eastern Bank v. Capron............ ....-- 184
Dover v. Plemmons............6.. 0205005 305 | Eastern R. R. Co. v. Benedict........ .... 252
Dow v. Humbert .......... 0566 cece ees 12 | Eastland v. Caldwell................. 148, 642
Dowell v. Stm. Nav. Co ...............+- 97 | aston v. Pratt............ 22 sgeee ceenee é
Downer v. Smiith..........2.eeee eee cece eee Easton v. WoOOdS.........0-eeseeeceere eee
Downes v. Back..........-.2ecesseeeeeeeee 257 | Eastwood vy. Lever
Downing v. Butcher. 5 Baton ¥~ Belles. ic ccsiscisy waiserteine sitisicreseeieiss
Downs v. Hawley ... .....----...0055 Ecclesiastical Commrs. v. N. E. Ry. Co... 138
Downy v. Burke . 305 | Eddowes v. Hopkins 735, 736
Dowse v. Coxe. Edgar v. Boies........ - 248
Dox v. Dey... Edgell v. Francis .. . 748
Doyl v. Duffy.. Edgson vy. Cardwell - 57
Doyle v. Jessup Edie v. Kingsford .. - 800
Drage v. Brand .. Edmonds v. Challis - 605
Edmonds v. Walter .. . 589
Edmondson v. Machel. - 79
Dreux v. Domec. Edmondson v. Nuttall. 507
Drew v. Sixth ave Edwards v. Bethel..., - 691
Driscoll v. Mayor Edwards v. Chandle - 621
Drish v. Davenport Edwards v. Crock... .. 665
Drummond y. Pijon. vs Edwards v. Edwards ..........--.2-----++- 685
Dry-Vi BONG site scisvsesaos cx renee 336 | Edwards v. G. W. Ry. Co.
Du Belloix v. Lord Waterpark....... 842, 745 | Edwards v. Leavitt.......
Duberley v. Gunning ........ Edwards v. Matthews........
Du Bost v. Beresford... 520) Edwards v. Sanborne .......-....... .. +.
Ducker v. Wood............ ty Edwards v. Temple,.......
Duckett v. Satterfield x Edwards v. Vere .........00.000e0ee seen
Duckworth, Re.... .....-. 2? Hichar v. Kistler .............. 2
Duckworth v. Ewart..... Eichorn v. La Maitre......

Duckworth v. Johnson.. Etchberry vy. Levielle...

Duel v. Harding........... .. Ela v. Card ...... ....+. -

Duff v. Mackenzie.............. se ane ABI) Bla. Clarion crise sere desis aspnices oe wid yc
Duffield v. Scott.......... = Ela v. French... .....

Duffey v. Shockey........ .... 202 | Elderton v. Emmens

Dugdale v. Lovering..... .... 433 | Eldridge v. L. I. R. R. Co

Duglass vy. Murphy............... id Eldridge v. Rowe .... ......

Duke of Brunswick v. Harmer...... Eliot v. Allen ... :

Dumars v. Miller........ 0... e eee eee ee Eliot v. Skypp......

Duncan v. Brown.......... i Elkin y.Moore. . ....

Duncan v. Hill .......... i as esis Ellington v. Ellington ................ 2...

 

 

 

 

Duncan v. Markley ........ Elliott v. Bayies 3 fe 620
Duncan v, Welty ............. Elliot v. Clayton .................220 cece 698
Duncombe v. Brighton Club... 233 | Eliot v. Heath... -. 806
Dunlap v. Gregory......-...... --- Elliott v. Minot .. « 225.
Dunlap v. Grote........ 247 | Elliott v. Nickin...... -» 662
Dunlap v. Higgins...... .... 87} Elliott v. Thompson z 292
Dunny. large............ Ellis v. Buzzell...... <a 643
Dunn v. Moore........... euiais. Ellis v. Chinnock « 267
Dunn v. Sayles.......... " Ellis v. Lindley 629
Dunwidie v. Kerley.... Ellis v. L. &S. W. Ry.Co.... 95
Durbin v. Garrard.... Ellis v. Loftus Iron Co. 93
Durden v. Barnett.... Ellis Ve Mayloticacse ci cine age: versawrs oh 536
Durell v. Pritchard Ellmaker v. Franklin Ins. Co .... 444, 458
Durst v. Burton.... Ellyatt v. Hllyatt............0 0... 00..0 eee ae 668
Durst v. Swift ........ Elsam y. Faucett.... -. 667
- Dustan v. McAndrew. Else v. Ferris.... ee -- 151, 646
Dutch v. Warren. BY? Vie Diese. vaesiciar adie sbiisinuecactcuind anaes 354
Duthie v. Hilton Emblen vy. Myers .............. ...00e 65, 597
Duvall v. Griffith. Embry v. Owen....... Hes. 8, 656
Dwinells v. Aiken Emerson v. Brigham. . . 268
Dyev,Mann, .... Emery v. Webster ....... .... ... ... B26
Dyson vy. Rowcroft Eminence, etc., Ins. Co. v. Jesse. .... . 453

Emmens vy. Eldertcn
Emmerson v. Heelis
Emmons v. Westfield Bank

Empson v. Griffin .............

Eads v. Murphy...
Eakin v. Brown
Eagan v. Gaantt
Eager v. Grimwood

 

 

Eager v. Harmon. Enders v. Board of Pub. W.. nen

Haglesfield v. Lon Engel v. Fitch...... oat
Eardley v. Price ...... England v. Marsden...................... 433
Earhart v. Youngblood. Engle y. Jones .. 58
Earl v. Middleton...... English y. Cluerry 743

 

Earl v. Van Alstyne... s a Entwisle y. Ellis .. i Palate
Earl of Mansfield v. Ogle.................. 228 ' Equitable Ins. Ge. in eerie ie pr
Tasie or Casgzs.

 
 
 
 
 
  
  
 
 
 
 
  
 
 
 
  

Ernest v. Brown
Essex v. Daniell
Estep v. Estep .
Esterly v. Cole..

Ethersey v. J. ack:
Etherton vy. Popplewe 536
Evans v. Bennett... . 805

Evans v. Brander.
Evans v. Ewens..
Evans v. Harlow.
Evans v. Harries
Evans v. Hughe
Evans v. Irvin.... .
Evans v. Kymer....

Evans v. Lewis. .... Bias.
Evans v. Prosser......... Tt
Evans v. Smith........... ‘150, 646
Evans v. Walton...............5- 79, G57, 663
Evansvills R. R. Co. v. Dunean 10:
Evelyn v. Raddish . .........
Everett v. Youells.............
Everhard v. EEN. Ww Se Seon
Evershed v, L.

Everth v. Smith..............
Ewart v. Kerr.........-....+-
Ewbank v. Nutting...... #:
Ewing v. Sanford.... ... ...
Exall vy. Partridge ....
Ex parte Barnett
Ex parte Bevan .....  ........-
Ex parte Cambrian Stm. P.Co..
Ex parte Cleland.... ............ ate sbi
Ex parte Hanson............ see eee eee
Ex parte Hulse .
Ex parte Lintott ............-..050-

Ex parte Marshall..................

Ex parte Peacock ...........6...00065

Ex parte Prescott ......... ...-0. eee

Ex parte Price... ae

Ex parte proeueoe
Ex parte Waters .
Ex parte Williams .

  

 

   

  
  
   
  
 
 
  
 
 
  
  
 
 
  
 
  

Eyre v. Glover ..............- mien aaenee

Fabrigas v- Mostyn... .....2..... seen eee 148
Fahy v. North... .......... 308
Fairv. M'Iver............ 194
Fairbank v. Phelps........... 486

Fairbanks v. Witler....
Fairman v. cantord

Fake v. Eddy . . 217
Falvey v. Stamford 1.1... -. 145
Farebrother v. wel nian -. 190
Farebrother v. Worsley .. 425, 426
Faris v. Lewis............- 278

Faris v. Starke ............. 581
Farley v. Danks... 575
Farmer vy. Darling . 562

Farmer v. Farmer
Farmers’ Bank v. McKe
Farnell v. Keightly..

Farnsworth v, Garrar
Farquhar v. Farley.
Farquhar v. Morris
Farr v. Ward........
Farrance v. Elkingto:
Farrant v. Barnes....

   

 

 

Farrant v. Olmius 145
Farrel v. Donnelly . 360
Farrington v. ve de « 486
Farrow v. Wilson ...-....+-..-+++ - . 808
Farwell v. Warren . ee amen A 64
Fawcett v. Cash.........++.. 2 wes 829

Fawcett v. Woods ............. S
Faxon y. Mansfield............. «+. 809

Fay v. O'Neill .....-....0e0eeee oe .... 573] Foley v. McKeegan.. aieteed
Bay v.. Parker’... 012 és vacweaseaes vorene 59, 60] Follenstein v. eneene ‘
Featherstone v. Wilkinson........... 30, 397 | Folsom v. Brawn.......
Feize v. Thompson........... . 2 740 | Folsom v. Underhill
Felkner v. Scarlet.... . 661| Foot v. Ketchum....
Fell v. Whitaker... 531 Foot v. Tracy.......
Fenn v. HarrisOn......-..-0.0sceeee ee ceee 351 | Foote v. Blanchard.

Fenton v. Clark .......... +e» B04, 306, 808, 310

4) Fentum v. Pocock .

288 | Foley v. Addenbrooks.
‘Foley v. Bell

 

Fenton vy. Perkins Rduaspvies

Fenwick vy. Robinson.
Ferguson v. Fyffe.....
Ferguson v. Lothrop..
Fernley v. Worthingt<
Fernly v. Cross .
Fero v. Rusco .
Ferrin v-Symon
Ferris v. Burton .
Ferris v. Comstoc:
Fessler v. Love.
Fetherston v_W:
Fetter v. Beale... .
Fewings v. Tisdal
Fidler v. Delevan .
Fidler v. McKinlay.
Field v. Jellicus..
Field v. Kinnear ......

 

Filer v. N. Y. C. R. RB. Co.

Filkin v. Ferris........-..
Finch v. Blouut....
Finch v. Brown ......
Finder v. ee
Findley v. Hall.....
Finnell v. Nesbitt .
Finnerty v. Tipper. slave
Finney v. Turner.... .. .

Fireman’s Ins. Co. v. Powell.

Fish v. Kempson ...... .
Fish v. Roseberry..
Fishell v. Wians....
Fisher vy. Clark...
Fisher v. Dudding..

xlv

Page.

  
  
 
 
  

.. 89
1387, 141,
jane 888

Fisher v. Fallows...... ee

Fisher v. Forrester... .
Fisher v. Patterson ..

Fisher v. Prince....
Fisher v. Sargent .

Fitter v. Veal.........

Pitegon y. Mackinder ...

Fitzpatrick v. Cottingham. ee

Fitzsimmons v, Inglis....

Flake v. Carson
Flamingham v. Collins...

Flax Co. v. Milles. .... ....

Fleet v. Hollenkemp.
Fleetwood vy. Taylor..
Fleming v. Beck ...
Fleming'v. Simpson
Fleming v. Smith
Flent vy. Steadman..-..
Fletcher v. Alexander
Fletcher v. Burrows...
Fletcher v. Dyche
Fletcher v. Moore
Fletcher v. Randa‘
Fletcher v. Tayleur
Fletcher v. Webb.

EFleytas v. R. R. Co
Flick v. Weatherbee..

 

Flint v. Clark... .... Sacadeckaes

Flint v. Flemyng... ..-
Florence v. Drayson... .
Florence v. Jennings...
Flower v. Adam .......
Flowers v§. E. Ry. Hoy
Floyd v. Hamilton..

Flureau v. Thornhill.
Flying Fish, The........

 

Foote v. Burnet..........

  
  
 
 
   
  
  
  
   
    
 
  
 
   
  
   
  
  
  
 
 
 
 
 
  
 
  
  
  
  
 

a4
xlvi

v. Hayne.

   
      
 
  

 

 

 

 

 

Tasie or Cases.

   
  
 
 
   
   
    

French v. Gerber........ .

 

 

 

 

‘8; French v. Ramage .
463 | French v. Rogers
630 | French v. Stanton
448 | French v. Vining....
191 | Friedland v. McNiel..
80 | Frierson v. Graham.
217 | Frink v. Potter .
510 ‘ripp y. Martin
. 660 | Frissell v. Relfe........
222 | Frixione v. Tagliaferro ..
182 | Frost v. Knight......... 3
seibeis . 86| Frost v. Willard.. ‘ 50:
ree iasail teas . 258| Fruhling v. Schrader...” 22)
. 236 | Fry v. Bennett cia 152, 154, 616, 618, 647, 752
iaciaty deeraiePeleenpsina . 144) Ery v. Evans... ... 179
.. 451| Fullam v. Stearns. ee a
forster - Forster .. .......+++ . 669 | Fullenwider v. Me Williams a OTE
Porster v. Wilson..... sibs 194 | Fuller v. Dean. ......... -. 149
forsyth v. Hastings. . 804, 311, 312 | Fuller v. outer. -- 637
forsyth v. Palmer...........22..-+eeee eee 145 | Fulmer v. Harman.......- 566, 573
Forsyth y. Wells. .. 498, 496 | Fultz v. Wycoff.... 2. ..--.002 eee eee eee 710
Fort v. Orndoff.........-.....05 . 89, 70} Funk v. Dillon. .......... 489, 500
Foshay v. Ferguson.... . 572 | Funk v. Vaneida... ...-....2. seeeeeeee es 54
Foster v. Elliott.... ......... 542 | Furlong v. Polleys ........- .-.+++ee08+ 18, 71
Foster v. Equitable Ins. Co. 446
Foster v. Hoyt ..............5 178 | Gagg v. Vetter........0.. -eeseee eee eee ee
Foster v. Jared. ......... ..- Gaines v. Salmon .. ......-
Foster v. Kennedy........... ... 61] Gainsford v. Carroll.... ....... z
Foster v. Love........ 2.0.20. -- 248 | Gairther v. Blowers..... —.-----
Foster v. Thompson.............. . 292) Gale v. Dean. ............-0 00
Foster v. Weston..... Gale v. Luttrell.

Foulkes v. Sellway..
Fountain v. Boodle..
Fowler v. Armour. .............. 317, 318,
Fowler ¥.« Bott sscicsc: ssis: ise sas tainelcwsies S000
Fowler v. Homer
Fowler v. Word......-...--.eee-ceeeee sees
Fowles v. Bowen:
Fox v. Brissay.
Fox v. Harding............-...55
Fox v. Phoenix Ins. Co
Fox v. Stevens .........2. .2ee ee eee
Fox v. Vanderbeck.
Foxall yv. Barnett...... ........--...-
Fraler v. Sears, eres 2 Go
France v. Gaudet.
France v. White. .
Francis v. Baker
Francis v. Castleman
Francis v. Cockrell.
Francis v. Dodswort!
Francis v. Rand .
Francis v. Schoellkop: si
Francis v. Wilson.... .

  
  
 
    
     
       
   
    
   
 
  
  
  

 

 

Franciscus y. Reigart “laa
Franklin y. 8. E. Rail. Co 601, 678
Franklin Ins. Ont . Coates

Franklyn v. Cart
Fray v. Voules..

Frayes v. WPS s..,usist Si ti ecse casacoione 71
Frazer v. Smith ............c.:cceee ec ee eee 39
Frazier v. Gibson . «. 174
Frazier v. McCloskey ; 621, 630
Frech. v. Phila. R. R. Co... .........-.265 1
Frederick v. Halberstadt.

Frederick vy. Lookup
Frederitze vy. Odenwalder
Freeman v. Arkell
Freeman vy. Fairlie.

53'| Gardner v. Niles. .

90 | Geev. Pack

 
   
  
  
   
  
   

Gale v- Walsh.... .....--- .eeeeete eee eee 350
Galena, etc., R. R. Co. v. Rae.
Galena, etc., *R.R. Oo. v. Yarwood....
Gallagher v. Wy antag:
Gulleney' 's Appeal
Galloway v. Courtney
Galsworthy v. Strutt,
Gammel vy. Skinner... ..
Gamon vy. Jones
Gandell v. Pontigny.
Saou v. Madigan

ants V." Vinard...........-+ minis derstase a yeas
Gantt v. MacKenzie................ ...5.
Garbutt & , pilapson
Gard v.
ee 25 eATwietrone:

Gardner v. Randolp!
Garland v. Carlisle
Garner v. Moore.

 

Garnett v. Welan. - 407
Garrard v. Dollar 283
Garrard v. Willet . 572
Garrett v.Carr.. - 21
Garrett v. Messenger - 4
Garrison vy. Pearce .. 573

Gary v. Hastings...
Gassett v. Gilbert

 

Gates v. Reynolds.. 54
Gathercole v. Miall.... ..... .. +. 625
Gaunce v. Backhouse...... 60... - esses 561
Gay v. Gardner........ 0.0... cece e eee 215, 225
Gaylord Vi Con Discs sinsaws: aaa: savas. 185
Geare v_ Britton................ cece eee 633
Geovs Bacon. 0: ninsosiea es on ceinnnaanes 184
Gee v. Lan. and cormshire Ry. Co. .. 256, 400
Gee v. Metrop. Ry. 1

  
 
 

Freeman v. Morey.. 8] Gell v. Burgess .. 1.0... occ ieee eee eee 330
Freeman v. Price... Gen. Steam Nav. Co. v. Mann .. ......... 95
Freeeman vy, Rosher ... Genet v. Mitchell......0 ......... -.00. e. 158
Freeman vy. Tinsley . George v. Claget.........00 cece ce seen ee 182
Freer v. Stotenbur.. George v. Fis win(ain Ginacarne St Ha ivi ssghmaas 542
Freese y. Crary...... 9] George v. Law....... . U1
Freese v. Tripp.... . ....ec cee ceeeeeeeee 64| George v. Skivington.. 394
Preidenhett *. Fidarandeons. 59| George v. Van Hern. os 658
Fronch v. Andrade..............0.cceseeee 176 | Geraldes y. Donison . 383
erence Vv. Beets , Soe oe eipees v. Budd SaaS a WMieS « Bidie Sapaceniars

rench y. Brookes on v. Po nton... aha Seat ageieie 2
French vy. Fenn ..... : Gibbs v. Bryant 98,

  

aonacneis LOR
French v. Garner... - 171, 178

 

 

Gibbs v. Chase
TasiE oF Caszs.

Gibbs v. Cruikshank..................65
Gibbs v. Cunningham.
Gibbs v. Fremont.... .
Gibbs v. Jemison ....

Gibbs v. Potter...
Gibbs v. Tunaley.
Gibson v. Bell....
Gibson v. Chaters..
Gibson v. Humphrey.
Gibson v, Kirk
Gibson v. Perry...

    
 
  
 
 
 
 

   
 
 
     
   

 
   
   
    
      
 
 

 
     
    

 

23 | Gough v. Farr..

7145 | Goulding v. Hewitt.
62 | Government St, R

  
 
 
  

Gould v. Barratt
Gould v. Oliver.
Gould v. Webb.

Gourdier v. Cormack.
.R. Co. v. Hanlon...

 

Gowen V. Gerrish ............ 0.00 ee eee
Gower v. Carter......
Gower v. Heath.

   
  
   
 
     

 

 

 
  
   

Gibson v. Sturge . dest Grable v. Margrave SERUREARRNEETE DE RENGT
Gilbert vy. Berkinshaw....... ...........5 Grace v. Morgan....... .. 120, 562
Gilbert v. Burtensbaw....... ....-......- 746 | Grady v. Newby...... -» 487
Gilbert v. Kennedy .........-..... cee. 542 | Graeber v. Derwi i sisttatsyeeaateicte 83
Gilbertson yv. Richardson e isos cue etedoednn 517 | Graff v. Barrett . ai arertie he . STL
Gilchrist v. Williams ...... .............- 168 | Grafton v. Armitage........... 300
Gildersleeve v. United States. .......... 40} Graham v. Allsopp......... 193
Gile v. Stevens ........... 0. cece cece eee 7 | Graham v. Bowham.......... 736
Gill v. Patton ....... 6. fcc eee eee eee Graham v. Davidson....... ... < 221
Gillard v. Brittan.. Graham v. Firemans’ Ins. Co........ 453
Gillett v. Rippon .... 22. .............e 34 | Graham v. Jackson........ erie! eee an 239
Gillett v. Western Railroad.. Graham v. McOCreary............... 145
Gillis v. Peck ............ ... , 643 | Graham Vv. Roder........... .... 58
Gillis v. Snaae ich eeataca Graham v. Smith.... .. .. ...... 165
Gilman v. Lowell.. 152 | Graham v. Wigley. asia stsicva Wargigi associate 665
Gilmer v. Hubank...........-..... 000 eeees ; 646 | Grainger v. Martin ve» 456
Gilpins v. Consequa......... ......-.000-s 248 | Gramvel v. Rhobotham ......... araishn gia. isis 721
Givson v. Fisk....... 587 | Grant v. Astle ......... ccc cee eee cece eee 7137
Gimbart v. Pelah.. 535 | Grant Vv. Hover..........ccccceeeer eee eens 148
Gimbel v. Smidth ......- 2.2.0. 661} Grant v. Lyom .......... cs. eee eee eee eee 542
Ginnonv. ae Y.&H. B.R.Co 103, 104] Grant v. Mosley..... ......-s.seeaeee 107, 109
Girard v. Taggart........ 0 -........2. eee O| Grant v. Tallman ...........,...cs eee eee 295
Girlington v. Pitfield .... ..-............. 568 | Grant v. Welchman .............-.. Tisiees 348
Givbanv. Dailey..... -805, 308 | Grassell v. Lowden. 202
Glaister v. Hewer.. -.. 168] Grater v. oneal

Glascock v. Bridges. . 584] Graves v. State .

Glass v. Garber........ 18 | Gray v. Briscoe...

Glasspoole v. Young.... . 493] Gray v. Fowler.....

Glazebrook v. Ragland . ........ - 171 ere Sage

Gleason v. Briggs........ - 217 hi

Gleason v. Smith... - 802

 

Glendale Mfg. Co.
Glezenv. Rood..
Glidden v. Reading.
Glover v. L

Glynn v. Thomas.
Goddard v. Bulow.
Goddard y. Grand Trunk. Ry. C
Goddard v. Smith

 

    

5 | Green v. Carson

  
 
   
   
   
 
 
 
 

Green v. ‘button

 

Green v. Clark.

  

 

 
 
 

Godefroy v. Jay.. wig) le wieirae mine einai as 496
Godfrey v. Forrest. . Green Vv. Gilbert. 305
Godsell v. Boldero i Green v- Hulett ....... 00. cee. c eee ee eee 309
Godwin v. Francis, 28, 129, a 276, 281, 415, 486 | Green v. Price............ 020. e eee eee . 213
Goetz v. Amb: ek 61, 57, 597, 751, a Green v. Royal Exch. Ass. Co... 457, 459, 464
Golding v. Crowle.............-2...ee eee 587 | Green v. Salmon... ........ Sa hanaaearies Saueae 686
Goldsborough v. Baker. .. * 202 | Green v. S

Goldsmith v. Raphael......... . 526 | Green v. Sperry

Goller v. Fitt....... ... = . 147 | Greenfield Bank v. Leavitt .

Gompertz v. Bartlett . . 351 | Greening v. bled tig

Gompertz v. Denton . 263 | Greenland v. Chaplin.........

Gonzales v. N. Y.& H.R. R. Co. 108 | Greenleaf v. Til.

  

Goodall v. Thurman
Goode v. Goode & Hamson..
Goodman v. Pocock, 322, 325, 826, 827, 228, 329

Goodman Vv. Yay........-..62c000 cae coos 92
Goodrich v. People . «+» 269
Goodrich v. Starr...... 10

  
   
  
   
  

Goodrich v. Warner 581
Goodwin v. Cremer....

Goodwin v. Richardson.................. 168
Gordon v. Church ...... 173
Gordon y. Ellis........ 17

Gordon vy. Swan......---

Gore v. Brazier........ 290
Gore v. Buck...... 217
Gorman ¢. Button. . , 644
Gorton v. DeAngelis. 566, 573
Gorton v. Gregory += ae - 691
Gosbell v. Ercheres «
Goslin v. Corry.. . 626

Gotobed v. Wool...... wi
Gottsberger v. Radway..............-..-5 354

7 | Greer v. Powell..

  
 
 
      

Greenwade v. Mills..

Gregg v. James..
Gregory v. Atkins.. 642
Gregory v. Cotterell... 528, 594, 725, 738, 747
Gregory v. Duke of Brunswick...... 560, 721
Gregory v. McDowel
Gregory v. Williams..
Gregson v. McTaggart. ’
Gregson v. pHa aieS tae
Greville v. Gunn..
Grew v. Burditt .
Grey v. Grant ....
Grider v, Dent.
Gridley v. Ga

Gridley v. Tui

Griffin v. Colver.

Griffin v. Scott..........ee eee eee
Griffinhoofe v. Danbuz. :

 

  
   
 

 

Griffiths v. Lewis...

 
    
    
  

xlviii
PAGE

Griffiths v. Perry............ ...+ 245, 263, 696
Griggs v. Fleckenstein .... ......... ..- i
Grimes y. Coyle........ .eseceeeeeeseee eens 646
rinnell v. Stewart 571, 578, 574
GES CASE. 5 iw inwnicemee oka ae 8, whedE 183
ciahgieaaseesio Nee 246
snavciicpisialsseitios 292
hel iSsoracane bio tty 193
ies GWaxtantaeind 195
Grose v. Hennessey .. . 83, 265
Grossman v. Lauber.........--.:0e. eee ee 171
Grounsell v. Lamb .... .....2--0 0 ecee eee 302
Grund v. Pendergrast..........2- «esses 395

Guard v:, Risks. 2. ixecsescase os ceweawsieasis

 
  
 
 
  

Guerard vy. Rivers. .
Guerry v. Kerton.... 00... .ccc eee ee ee eee ee
Guest v. East Dean. .. .. ....-... ee ee eee
Guest v. Warren..........65 eeeeee ceee eee
Gully v. Remy.. ‘isl
Gunn v. Head..

  

TasLe or Cases.

 

   
  
 
    
  
 
  
 
   
 

PAGe.
Hamilton v. Van Hook... .....-....00005. 169
Hamilton v. Ward..........0. sseseseee 4, 10
Hamlin v. G. N. Ry. Co.. .. 29, 51, 398, 399
Hammer v. Bridenbach ......... , 202, 209
Hammond vy. Mukwa.... 107

Hammond v. Rogers .. 404
Hampton v. Wilson. 643
Hanbury v. Ireland.. . 141
Hancock v. Podmore. . . 685
Hancock v. Stephens ................++6-: 150
Hancox v. Fishing Ins. Co. ............. 457
Hankey v. Smith ............. -eee eee eee 736
Hanna v. Harter 240
Hanna Vv. Mills .. . 239
Hanna v. Pegg. 30, 709
Hannay v. Pell .. 173
Hannay v. Smith..... 5 929
Hansbrough v. Stinnett ............ 2... 629
Hansell v. Erickson 306

 

Hanslip v. Padwick

    
  
 
  

 
 

Gunn v. Scovil ...... ......-0.. eee Hanson, Ex parte. ..... ..-...225 sense 190
Gunter v. Astor.. Hanson v. Buckner......... .......-....- 292
Gurney v. Ford 8| Hanson v. European, etc., R. R.Co..... 156
Guthrie v. ee Vovaieig 5 eae tarsecarettvasianen aie 286 | Harbin v. Green..............02. see 2 eeee es 136
Gutteridge v. Munyard................... 369 | Harbison v. Shoak............--+ee0e-.00- 61
Guy v. Gregory ............-..505 624, 629, 638 | Harcourt v. Harrison.... .. ......... 627, 6322
Gwilt v. Crawley..............ceeeeeeeeee 613 | Harcourt v. Weeks ......... 22.0... eee 732
Gwynn v. Dorsey ...........e ee eee eee eee 220 | Hardcastle v. S. York. Ry. Co. -98, 99
Hacker v. Blake................006- 10, 54, 286 | Hardee v. Howard..............0. eee eens 202
Hackett v. Brown..........-...+-see.---, 148] Harding v. Carter ................. - 500
Hackett v. Connett ....... ..-2..2. 0 186 | Hardrop vy. Gallagher. . 542
Hackett v. Middlesex Manuf. Co..... 96, 108 | Hardy v. Bern..,....... 731
Haddon v. Lott...............-ceseee 36, 639 | Hardy v. Cathcart. 138
Haddrick v. Heslop... ............-....-5 574 | Hardy v. Corlis.... 174
Hadley v. Baxendale. .22, 37, 41, 47, 50, 67, 895 | Hardy v. Nelson..............ee se ee eeeeeee 291
400, 414, 735, 743 | Hare v. Richards................. - 223
Hadleyv.N.H F.Ins.Co..............6- 446 | Hare v. Travis ....-.. cece cece eee eee 466
Hadley v. Taylor............. sees eeeeeee Hargreaves v. Hutchinson ....... ... ... 497
Hagan vy. Providence R. R. Co....... oO Harkrader v. Moore................205
Hagan v. Riley ........ ....sec seen eee Harland v. Eastland .

   
 
  
 
    
 
 
 
 
   
   
 
 
 
  
   

Hagar v. Danforth
Hager v. Tibbitts
Haggin v. Price...
Haight v. Hayy 2: scnxcccos. san ooeeeoe 6
Haight v. N. Y.

Hailes v. Marks
Haldeman v. Jennings
Hale v, New Orleans...
Hales v. N. W. Ry. Co
Haley v. Dorchester
Halfpenny v. Bell

  

Hall’s Appeal. .

Hall v. Burgess.

Hall v. Crowley

Hall v. Dean ...

Hall v. Gliddon

Hallv. Hall...

Hall v. Hawkin

Hall v. Hollander

Hall v. Stone.....

Hall v. Suydam ..........

Hall v. Wright........ ..

Hall v. Yale .. .. .......

Hall v. York ............. 122
Halliday v. Holgate.......... . 504
Halligan v. R R.Co...... ... 542
Hallett v. Wigram.....-.......ee00- ee eee 402
Hallock v. Belcher. 709
Hallock v. Miller .... 8, 629
Halloekis. Slater s. cc sscrecsenseumanne ne 200
Halloway v. Stephens.......... 39
Hallowell, etc., Bank vy. Howard. 184
Halstead v. Meeker............. 221
Halton y. Muzzy... 642
Hambly v. Trott...... 682
Hamer vy. Hatheway . 488
Hamer v. Knowles... 138
Hamer v. McFarlin.... 151
Hamilton v. Ganyard -» 270
Hamilton v. Langley. -» 651

ee eal ve Mendes eats 5 me
amilton v, McPherson ...,18, 69, 70, 3: g
Hamilton v. Third Ave. R. R. Co... ;

 

 

  
  
 
 
 
    
   
  
  
  
  
    
  
  
 
 
 
 
 

Harlow v. Rosser ..
Harlow v. Thomas..
Harmer v. Cornelius.
Harner y. Denham...
Harper v. Calhoun.
Harper v. Eyles...

Harper v. Luffkin.

Harper v. Williams.
Harrington v. Binns
Harrington v. Coxe
Harrington v. Strat
Harris v. Bernard ..
Harris v. Butterley
Harris v. Edmonds
Harris v. Holliday.
Harris v. Jones....
Harris v. N. O. R. R. Co
Harris v. Osburn

Harris v. Panama R. R. Co 752
Harris v. Rupel....  ........ 762
Harris v. Scaramanga ................0+8- 468
Harris v. White ........ 20. wee eee ee 112
Harris vy York, etc., Ins. Co..... 452

Harrison v. Bank of Australasia.
Harrison v. Bush.... «2.0...

Harrison v. Cage
Harrison v. Dickson..................2065
Harrison v. G. U. Ry. Co.............2255
Harrison v. Harrison
Harrison v. King ............ ss...
Harrison v. L. B. & 8. C. Ry. Co.. ...... 4
Harrison v. Swift
Harrison v. Wright...
Harrap v. Armitage..
Harrop v. Hirst ......
Hart v Baxendale .
Hart v. Davis
Hart v. Evans..

Hart v. Frontino.
Hart v. Reed .....
Hart v. Skinner ..
Harte v. Houchin

 

60! Hartfleld v. Roper...000 70). 1
 
 
 
 
    
 
      
    
   
 
 
 
 
 
 
  
 
 
 
 

 
 
 
 
 
 
 
  
 
 
 
 
  
  
 
 
 
 
 
 
  
   
 
  
  
    

TaBiE oF Cases. xlix
Pagan. Paar.
Hartland v. General Exch. Bank......... 823 | Hercules Ins. Co. y. Hunter.............. 445
Hartley v. Harman........... 2.2.44. 226, 829 | Herkimer v. Rice................ . 452, 453
Hartley v. Herring.. 628, 633, 639} Herold v. Meyers ..............0cces seen ee
Hartley v. Pehall.................ccc cece 282 | Herrick v. Lapham ........ 627, 632
Hartshorn v. Williams ... 487 | Herrick v. Moore ........... +++ 296
Hartley v. Herring... . ........ 713 | Herrick v. Sullivan............... - 107
Hartwell v. Jowett... .... ... 307 | Herring v. Jester ,. sia helen ie 165
Harvey v. Pocock ...... . 588 | Herron y. Hughes... widielgnetoientiging bt - 559
Harwood v. aoe Setar . 620 | Hesse v. Stevenson ........... - 697
Harwood v. eppee eridcuseas 83 | Hester v. Hester.............. 220
Hasbrouck v. Milwaukee .... .. -. 299] Hewes v. McNamara........ 92
Haskell v. McHenry...... .. 240] Hewes v. Parkham.... ... . 506
Haskius v. Lumsden . : Hewitty. Prime. ccc scncwonrccsaes » 658
Hastings v. Lovering.. ¥ Hewlett v. Crouchley.. 748
Hathaway v. Barrow............ : er PLORCOD Ve NOR ose iad waisie gaterstistieigeeresseia ieee 23
Hatch v. Potter...... ........... 0.65 Hey v. Wyche.... .. . 874
Hatchell v. Kimbrough........... ....... Heywood v. Foster........ 4
Hatheway v, Newman... .......... Heyworth v. Hutchinson . 264
Hathorne v. Stinson............... Hibbard v. Stewart.......... . 506
Havelock v. Geddes Hickinbotham v. Leach.. . 646
Havemeyer v. Sepabehen Hickman _v. Haynes.....-. - 253
Haven v. Wakefield ........ 0.0.2.2... Hicks v. Mareco ............ 228
Havilland v. Bowerbank ................. Hicks v. Newport Ry. Co................. 678
Hawes v. Knowles............. .ec.esee ee 2 | Hicks v. Rising ................25 644
Hawk: v. Ridgway ................. ..- Hicks v. Thomas ......- fi 2» 220
Hawkins v. Coulthurst.............-....65 Hide v.,Thornborough...............0.005 541
Hawkins v. Harwood Higgins y. Sargent .......- 215, 225
Hawkins v. Kemp. Higgins v. Solloman.... ... 80)
Hawkins v. Plomer Higginson vy. Dall ...............22-22.0 22s 452
Hawkins v. Sciet.. Pee Bee v. Weld.... . 396
Haws v. Stanford.... gs v. Assam Tea COsiscs cesses tcetaees 189
Hayllar v. prerrood Hit ouse v. Davis ....... «.- 227
Haynes v. Prothro. Hill v. Balls... ............ 95, 273
Haynes v. Sinclair. Hill v. Featherstonhaugh 158, 303
Hays v. Askew.. Hill v. Goodchild . 927
Hays v. Blizzard. Hill v. Maupin 6

Haythorn v. Lawson.
Hayter v. Moat
Hayward v. Leonard.... ... eins
Hayward v. Newton.............-. =
Head v. Tattersall.................
Head *Vi-HOicincdicxssoasiceaecacces
Healy v. Gopman.... ..........-.
Hearn v. 8. W. Ry. Co..............
Hebdon v. West...........
Heckenkemper v. Din
Heckie v. Rodocanachi.......
Heckscher v. McCrea.....
Heenan v. Evans....... aie
Hefford v. Alger.......... ee
Heichen vy. Hamilton.... .....
Heilbutt v. Hickson..... .
Heilbut v. Nevill
Heim v. Wolf
Helen’s Smelting tl y. Tipping
Helier v. Casebert
Hellen vy. Ardley..

    
   
   
    
   
  
  
  
 

Hellier v. Franklin... 224
Hellings v. Young.. . TAL
Hellman v. Baumbach . 523
Hely v. Hicks.... ....... ~. 497
Hemmenway v. Woods.. 1, 709
Hemming v. Hale........ . 609
Hemmings v. Gasson ..... 617
Henderson v. L. & N 408
Henderson v. Lewis........ .-... . 169

Henderson v. Maid of Deane
Henderson v. Md. Ry. i

 

Henderson v. Squire.. “130, 397
Henderson yv. Stiles..........22 ceeeeeeee 305
Hendricks v. Decker 492

 

Henkel v. Pape...........20005 cee eeeeee 414
Henkle v. Davenport.........02665 weeeeee 629
Hennessee v. Farrell.............-se+ee00s 304
Henery v. Harl.........cc00ccceceet cece eens 330
Henry v. Goldney .......-.-.-0- seeeeeeeee 730
Henry v. Butler. .......+.---.22-.0005 167, 174
Henshaw v. Bank of Bellows Falls. ...... 489
Henson v. Geran aiiat eV aueeptenias Seis 30!

Henson v. Veatch . . 149, 151, 639
Hepburn v. Sewell .........:26- ssececeeee 510
Herbert v. Salisbury & G. Ry, are me, 213
Herbert v. Wolters........ .. 529, 723, 731, 732

G ‘

4! Hoey v. Felton.

 

 
   
  
    
 
 
 
  
  
  
   
 
    
 
  

Hill v. Miles ..

Hill v. Palm .

Hill v. Smith
Hill v. South
Hills v. Wilson....
Hilt v. Smith
Hilton v. Fowler..

 

Hilton y. Woods... 495
Hilyard v. Crabtree ................2.205. 306
Hinchman v. Ritchie...... 560, 561
Hinchman v. Whetstone.. --. 1
Hinckley v. West ......... ... 169
Hinde v. Liddell..... 29, 256
Hiner v. Richer ............... 0. eee cease 275
Hinton v. Sparkes..... 212, 284
Hirschfield v. Smith...............-....2. 346
Hirst v. Goodwin... .» 639
Hise v. Foster....... . 202
Hitchcock v. Hunt.... 33
Hitchens v. Hitchens .................... 480
Hitchman v. Stewart . - 430, 431
Hitson v. Forest .......-..0.-cece ve eeeeees 572
Hix v. Drury.. ..... 618, 643
Hoadley v. MWaksonn 59
Hoar v. Clute...... 308
Hoare v. Allen .. 668
Hoare v.Crozier..... 739
Hoare v. Silverlock . 617
Hobbs v. Christmas ..... .... .........-5 351
Hobbs v. L. & 8. W. Ry. €o. af, 68, 73, 399, 400
Hoblins v. Kimble...... eas 730
Hobson v. Thellusson.. ......--....- 2245 606
Hobson vy. Todd....... 556, 558
Hoby ¥:. Built sac aiccacweisstiainsars aegis 613
Hochster v. qc. 139, 244, 821, 825
Hodges v. Litchfield........... 128, 275, 712
Hodgman v. West Midiand Ry. Co......
Hodsall v. Stallebrass. ........ 0... 00. e sees 137
Hodsoll v. Taylor...... Se ioe
Hodgson v. sees

Hodgson vy. are

Hodgson v. Wood .

 

Hoffman v. Kemerer

Hoffman v. Union Ferry Co .............. 08
Hoffman v. Western M. & F. Ins. Co. .444, 445
Hogan v. Brown ..........+ e Asinreemaiee pie 1651
] TasLe or Cases.

 
     
   
   
 
 
   
 
 
 
 
 
 
  
  
  
  
 
  
  
 
 
  
 
   
 
  
 
  
 
 

PAGE

Hogan v. Cregan..... ivees veces 164, 658, 059
Hogan v. Tillow........-.:ecee cece cece rere 305
Ee a v. Plimpton. . 269
Holbach v. Warner... ...... 91
Holbrook v, American Ins. . 452
Holburn v. Neal. ............-- 152
Holcombe v. Hewson...... « 269
Holcombe v. Holcombe ..... 221
Holden v. Liverpool Gas Co. 95
Holdworth vy. Wise..........- 461
Holford v. Dunnett .. 3

Hollett v. Wigram......
Holford v. Hatch ......

Holliday v. Atkinson...... f
Hollingsworth v. Detroit. .. =
Hollingsworth v. Hammond
Hollis v. Wells ....
Hollister v. Barkley
Holloway v Abell.
Holloway v. Stephen:
Holloway v, Turner..
Holmes v. Catesby.
Holmes v. Holmes.

  

 

71 | Hoyt v. Wildfire

 

   
 
 
  
  
 
  
  
  
 
 
 
  

Howe v. Mackay ...
Howe v. Newmarch
Howe v. Sheppard.
Howell v. Cheatha
Howell v. Goodrich
Howell v. Howell

Howell v. Young..
Howes v. Ashfield
Howes v. Martin....
Howland v. Howland
Hubbard v. Belden .. ...
Hubbard v. Charlestown
Hubbard v. Fisher.......
Hubbard v. Norton
Hucklev. Money.
Hudgins v. Perry.
Hudson v. Dale...
Hudson v. Daily ........ ........-6
Hudson v. Nicholson....... .....-

Hudston v. Midland Ry. Co....
Huff v. Bennett.... .. ..--.-..
Huffman vy. Shumate

 

  

  
  
  

 

 
 

  
 
 

  
 
  
  
 
 
   
  
 
 
  
  

Holmes v. Sparkes. 610 | Hughes v. Fisher... Madienee sees 208
Holmes v. Tutton Hughes v. Graeme...... .-129, 415, 434, 531
Holmes y. Wilson... Hughes v. McFie..........------------224- 101
Holsman vy. Boiling{Spgs. Co .. Hughes v. Quentin............. ..... 516, 599
Holt v. Holland.............-. Hughes v. Union Ins. Co...............-- 331
Holt v. Holt..... .. Hughes v. Wamsutta Mills................ 306
Holt v. Scholefield . 3 Huidekoper v. Colton........ 566, 567, 568, 569
Holtum y. Lotun.................5. Huling V.HuUge i... cnosessaere die carws see 1%4
Holwood v. Hopkins Hulme v. Muggleston .......... ..-....-- 192
Home Mut. Ins. Co. v. Garfield .... 445 | Hulse, Ex parte................ ... 209
Homfray v. Rigby. ............- Hulse v. White.... ...........- - 287
Hook v. Hancock ................ Hume v. Oldacre........ . 547
Hook v. Stovall ................45 ... 83/Hummelv. Brown.... .............26 000+ 230
Hooper v. Pope ...........0 ----.00- 2G Humphreys v. McClenachan.. ... ...... 292
Hope, etc., Ins. Co. v. Brolaskey Humpbhreysville, etc., Co. v. Vermont
Hopkins v. Atlantic R. R. Co...58, 59, 63, 76] Co .........2e eee cee cee eee eee 16
597, 598 | Humphries v. Johnson ............ we 60
Hopkins v. Murray...........----. ...- :, . 424] Humphries v. Parker............ ..... -. Td2
Hopkins v. Megguire ciate Hunt v, Bennett........ x So dea BU
Hopkins v. Myers..........2...e0seee cee Hint Vi D’Orval .cwsdeisntcssese. ceegeas 83
Hopper v. Richmond ...................0- Hunt v. Hall.......-. ses 219
Hopwood v. Schofield HUNG ¥. HOVE: orice sje ue ninves sniaisicie.sieisig Searsiore 598
Hopwood v. Thorn...............64. Hunt v. Jones...........+ -628, 712
Hopwood v. Whaley... ..........- a Hunt v. Reeves. ...........2..020.02 cee
Hoppins v. Miller.............-....-----2 2. Hunt v. Round.............-...-2.-20+ 425, 604
IOP Vs BOOM 6 sie.ci. aie cig tere gcarajaiae sisiste siete Hunt v. Royal Exchange Assurance Co., 457
Horn v. Chandler..............eeeeee eee 1 459
Horn Vi Nashisie: sescwxandcas ssiesteiste: wie. Hunt Vi SUK: wcic sos. sscncseecen Mowe yess 6+ 282
Horne vy. Hough ........ eat arene 896, Hunt ¥3 Wotton is.secs ccocsses exceses 34 G7
Horne v. Midland Ry. Co. .....46, 85, 256, 399} Hunter v. Bates.. .......... tithe s seheegie 229
Horner v. Denham......... .....2-2..00e 332 | Hunter v. French
Horner v. Flintoff ..............0.00. ween Hunterv. Fry ..............-
Horner v. Hunt.... Hunter v. Hunt
Horner v. Wood..........-..-+- Hunter v. King
Hornidge v. Wilson.... ... ..........22-. 689 | Hunter v. M’Gown.......-.-.. 0. eee eee eee 407
Honore v. Murray... 215, 218 | Hunter v. Stewart .. ...80, 71, 709
Horsford v. Wright..................- 286, 290 | Hunter v. Wilson............... ...-2.-. 347
Horton v. M’Murtry... 307 | Huntington v. Ogdensburgh R. R. Co., 322
Hosking v. Phillips... ............ .2..2.. 541 326
Hosley v. Brooks ...... 616, 648 | Huntley v. Simson ....... ............ 573, 579
HOSM6L.V. TIUG . 25 venccacasrea cinvwess oe 199 | Huntly v. Bulwer.. 308
Hotchkiss v. Porter .............22.5 - 647| Hdrd v. Hubbell ............... .. ee eee
Hough v. People’s Ins. Co.......... : . 447 | Hurd v. Shaw....... ae
Houghton v. Carpenter ..... . ..... . 265 |} Hurdle v. Hanner..............00 cee een 170
Houghton v. Hagar ..........ccseeee eens 226 | Hurlbert v. Ins. Co ............ 00.0005. 148, 175
Houghton v. Houghton.... Vi4 | Hurst v. Hurst 2.0... ec ce eee ee cea 208
Houghton vy. Matthews ................55 182 | Hurst v. Jeunin iets 8h te
Houliston v. Smyth...... . . 666 | Husony. Dale ....... -148, 149, 620
Hounsell v. Smyth .. - 98, 100 | Hutchins v. Chambers..................45 532
Hounsfield v. Drury . , 582 | Hutchins v. Hutchins ........... 2.2.0... 559
Houston vy. Crutcher ... ..........0. 0s eee 216 | Hutchinson v. Granger .................-- 70S
Houston v. Jamison ..........0.2000008 oe 217 | Hutchinson v. Reid.... 239
Houston v. Lane... 641 | Hutchinson v. York ................200ee 679
Hovey v. Newton. 289 | Hutchinson v. Wetmore.... ..805, 809
Howard v. Daly...... 817, 821, (822, 24, 826 | Hutchinson v. Wheeler..................- 15
Howard v. Lovegrove . 184] Hutton v. Ward.......... 844, 118
Howard v. Newton. . 126 | Huxley v. Berg .. Sweten’s tanoriend 69, 548
Hecate: Betaee “€id RAB, ban | Hide vy, Cookson. 6200200270007 ash: 106
: D.. . ev. Cookso
Howard v. Woodw: Pia eee Hyde vy. Stone ... sis ajaceerara . a 00

 

 
Taste or Caszs. li

   
  
    
    
 
 
   
 
  
 
 
  
  
   
    
    
   
  
  
    
   
  
 
  
  
     
  
  

  
     

Paar. PAGE.
Hyno Vi Blatt sscicicscosseececs 03 oy eeaeds 578 | Jeffery v. Bastard......... .......220005 - 603
Hydraulic Works v. Orr..............0005 101 | Jeffries v. Evans..... 0.0... cece eee eee 185

Jeffryes v. Agra & M’s Bank... .......... 189
T’Ansun y. Stuart .........0.. Bajar Piles 646 | Jeogon v. Vivian ............. cece eee
Ibbett v. De la Salle . 185, 423 | Jellison v. Goodwin .
Toely v- Grew... 2. cece cece eee eee eee eee 284 | Jenkins v. Biddulph
jams v. Rice.. . 218] Jenkins v. Ficklin;

 

Tler v. Cromer ... oe --. 155 | Jenkins v. Little

Tllies v. Diercks .....-... escsevseeeees 755 | Jenkins v. Long

Illinois Cent. R. R Case of.......... 24| Jenkins v. McConico...................06+ 488
Tilinois Central R. R obo v. ORSLaD: = 1064 denkine vy. Davies: i: cvvscevavancctannas 729
Illinois, etc., R. R. i Ge v. Simmons.. . 750] Jenks v. Wilbraham ... ............ 000. 1
lsley v. Jewett. 228) Jennings v.Camp .. 805, 309

   

In re Newman.. 211| Jennings v. Loring... leas

 

 
   

 

In re Schaeffer, (Rats Of cc ccctheusct eek 220 | Jennings v. Webster ............+-s.2. ses 172
Ince v. Ferry Gort cea 108 | Jenny v. Brook...... ‘ «+ 122, 742
Inchbald v. Western Neilgherry Coffee Jervis v. Tomkinson..................6005 353

CO sae esi stevavstavagsalate xed sinieinnniiarors, Seicieies 244, 304 | Jervis v. Wolferstan . % vee 433
Incledon v. Berry........... 572, 573, v7, 619 | Jesser' Vs BUIE vacicsacen sniciss vovsriusiena 542
Indianapolis, etc., R. R. Co. v. Birney, 12, 73) Jesser v. Gifford 4 Suateraan’s sadealsi 558
‘Industrie,’ The wie. ic cess eee wee. 103 | Jeter v. Glenn . 292
Ingerson v. Miller... . 657, 755 | Jetter v. N. Y. & OLR. RO 00l I. 96, 102
Ingersoll v. Jones... 165, 659 | Jewell v. Gage (54
Ingram v. Lawson - 140, “626, 629, 631, 637 | Jewell v. Schroeppel........... .......... 308
Inman v. Foster.... : 149, 620, 621, 630 | Jewell v. Thompson vee. 805
ns, Co; Vi. Drake sess ices teaates 2 ese 452) Jewett v. Whitney... 12
Ins. Co. y. London, Liverpool & Globe Job v. Langton.... 468

   
 
   
   
  
 
 
   
   
   
  
  
    
   
 
  

TOS: CG 04. b2.j4ec ccusumcaeeeastes. dansinnz Job v. Patton... ..
Ins. Co. v. Updegraff .. : Jocot v. Emmott...
Ins. Co. v. Woodruff .... Johns y. Dodsworth

 

Irby v. McRae ....... : Johnson v. Atlantic, etc., R 118
Ireland y. Johnson 35 | Johnson v. Bland.. 139
Irvin v. Hazleton.... Johnson v. Browning 588

Johnson vy. Canal

Johnson v. Gomeiadk
Johnson v. Durant..
Johnson v. Emerson .
Jobnson v. Hannahan
Johnson v. Johnson..
22| Johnson v. Jones....
Johnson v. Lakeman :
Johnston v. Martin.. z 567, 573,
Johnson v. Skafte ............ cee eee eee 433

Irving v. Greenwood
Irving v. Manning
Irwin v. Tanner

deans v. Brand..
Isbell v. N. Y., et
Isberg v. Bowden
1sett v. Oglevie..
Israel v. Brooks
Ive v. Scott ....

Ives v. Bartholomew...

 
  

Johnson v. Stear........ a ae ae an 503
Jacks v. Stimpson.... ........055 coer ee Jobnson v. Sumner..... 492
Jackson v. Adamson . a Johnson v. Upham..... 536
Jackson v. Baker........ os Johnson v. Wells, F. & Co 14
Jackson v. Boast...... 3 “ Johnson y. Wyatt....... . 159
Jackson v. Bowley Johnstone v. Hall....... ... 548
Jackson v. Holliday... : 122 | Johnstone v. Hudlestone . ay indtiob aittare 360
Jackson v. Pesked ............-. Johnstone v. Sutton .... -. 578, 576
Jackson v. Union Marine Ins. Co DOM Y Vs Single saccianiscedcriacconasvaiawises 548
Jackson v. Williamson a Jones v. Adamson .. «+. 393
Jacobs v. Bangor....-.......ceeeeeee veces 751 | Jones v. Baker ...... --. 560
Jacobsohn y. Blake........ .. 587 | Jones v. Bodinmer .... ............000200- 732
Jacques v. Withy........-. - 173 | Jones v. Boyce .... -. 108, 599
Jaffray v. Dennis.... .. 220] Jones v. Brinley ......-.....----...ee0cees 429
Jatfray v. Frebain..... 128 | Jones v. Brooke..........22..02cee eee eee 124
James v. Adams..... ... 86] Jones v. Brown .........-.2. cece ee eee eens 80
James v. Biddington...... 353, 668 | Jones v. Chapman. --. 643, 651
James v. Campbell.... - 591] Jones v. Davies ........--2 0 ce eee eee eee 503
James v. East India Co.... 382 | Jones v. Dugan... 4
James vy. Phelps........ 623 | Jones v. Dyke...
James v. Thomas.... ... 339 | Jones v. Gilreath
Janson v. Ralli.... .. . 460 | Jones v. Gooday ...
Jaques v. Miller..... 279 | Jonesv. Graham.
Jaquith v. Hudson. 205 | Jones vy. Harris..
Jamison v. Brady .... 171 | Jones v. Heavens.
Jamison v. Hendricks .--. 489] Jones v. Hibbert gp eeaaraiesys 348
Jamison V. MOOD.......-..eeceee ceeeceees 20 | Jones v. Jones 1.64, 817, 324, 479
Jarmain vy. Egelstone.... .............005. 276 | Jones v. Just... 264

Jarpigan v. Fleming » 616 | Jones v. Kynnier.

Jarrett v. Gwathmey ..........00ece scenes 587 | Jones v. Lewis...

Jarvis v. Chapple... .......26 cc eeeeseereeee 188 | Jones vy. Mackie.............. eee eee eee
Jay v. Almy........ .. 61, 593 | Jones v. Massop..

Jeakes v. White ties aslae Latiodiereeateee? \ vardtcaaieate 282 | Jones v. Moore..........-

Jebsen v. E. & W. Ind. D. Co............ 156| Jones v. N. Y. R. RB. es

Jefferies v. Sheppard.... .....-..seeeeeees FONESV. OGlescainiccscccwesanes sivesiaiienas
Jefferson v. Adams.. ss Jones v. Orchard.

Jefferson v, Jefferson .. Jones v. Ryde..
Jeffersonville v. Patterson Jones v. Sinclair...
Jeffersonville R. R. Co. v. Hendricks . Jones v. Sparrow.

« 104 ‘i
Jeffersonville R, R. ‘Co. v. Rogers ........ 63' Jones v. Turpin....... soaeeslesinr ste

 
   
  
   
  
 
 
 
 
 
 
 
 
   
  
    
   
   
  
 
 
   
  
 
  
    
   
  
  
  
 
 
 
  
 
 
 
 
   
 

hii

PAGE.
Jones v. Ward ... «. 221
Jones Vv. Williams 34, 426
Jordan v. Jordan 5

Jordan v. Lewis........

Josey v. Wilmington, etc.
Josling v. Irvine..........
Joule y. Taylor.
Jourdain vy. Pali

 

 

Jutte v. Hughes.... - 18
Kahn v. Love. - 108
Kane v. Smith « 215
Kansas, etc., R. BR . 107
Karney v. Paisley ...............- . 681
Katterman v. Stitze: . 566
Kearney v. Holmes « 572
Kearsley vy. Oxley .. 687
Keeler v. Wood . 122, 292
Keen v. Priest.. 536, 538
Keene v. Dilke. vee 525
Keene v. Keene 342
Keenholts v. Becker ..... 621
Keith v. Hinkston .... ...... ... . 39
Keller vy. N. Y. Cent. R. R. Co.... - 96
Kellock v. Enthoven..........-.- - 43
Kelly v. Bradford............. 303
Kelly v. Garrett..... schwaReRigenel ta asadams 1%4
Kelly v. Partington... 90, 638, 640
Kelly v. Sherlock .... -. 648, 745
Kelsey v. Murphy.. 218
Kelton v. Bevins............. 572
Kemp vs Balls). v.28 20. cuieaces vanneees, oe 331
Kemp v. Finden.................- . 125, 431
Kemp v. Halliday ........ ; . 457, 468
Kemp vy. Humphreys......... -- 806
Kemp y. Thompson..... wae 487
Kendillon v. Maltby ......... 112, 6

Kendrick v. Cypert ............ sae DD

Kendrick v. Lomax........ ..- 351

Kenedy v. Cunningham .... ...
Kennard v. Burton
Kennedy v. Dear.................0008
Kennedy v. Gifford ..

Hennedy W, GreZOLry vevgevoves sss:
I

 

Kennedy v. Holborn
Kennedy v. North Missouri R. R. Co..
Kennett v. Robinson....... 02... -seseeee
Kennedy v. Shea...........
Kennedy v. Whitwell....
Kennerly v. Nash
Kenney v. McLaughlin. ..........
Kent v. Genter

Kent vy. Hudson R. R. R. Co
Kent v. Kent..........:.. ccc ceec eee
Kenter v. Walbaum
Kentucky, etc., R. R. Co. v. Dills.
Kenyon vy. Woodruff
Kepler v. Hyer
Kerbey v. Denby.......-...
Kerfoot v. Marsdon
Kernochan v. Bowery Ins. C
Kerr v. Force.
Kerr vy. Laird
Kerr v. Willan ...
Kerr vy. Workham..
Key v. Key........
Keyes v. Devlin.
Keyes v. West.
Kimel v. Kimel..

 

 

Kinder vy. Butterworth

Kine v. Sewell ......... 621
Kid vy. Mitchell. 488
Kidd v. Belden ......... cc. .cecee sneer ee ee 258
Kidd v. Walker.............-.0. 00000. 230, 3844
Kidder v. Parkhurst ........... ....sse0es 584
Kidgill v. Moore........ ce leasdecnaennistoraystetaes 658
Kightly v. Birch ...... ais iecaeeblnnnaien eiariat cee 24
Kilmore y. Abdoolah... 748, 745
Kilner v. Bailey ............ ce. eee eee eee %3

Kilvington v. Stevenson...............56. 179
King: v. Bn gland iiss ais cece cascresunies ceive * 684
King v. Hoare.......... . 498, 511, 512, 730, 751

6 | King v. Talbott...

34 | Knour v. Dick

 

Tasie or OasEs.

   
 
    
     
    
   
   
    
    
 
  
 
 

King v. Jones... .
King v. Norman
King v. Orser.
King v. Pyle..
King v. State, e
King v. Steiren .

Kingdom vy. Nottle...
Kingham v. Robins
Kingston v. McIntosh
Kimberley v. Hossack
Kinnersley v. Mussen
Kinney v. Nash....

Kinney vy. Watts.......-
Kip v. Berdan. ..
Kipp v. Wiles ....
Kirk v. French
Kirtley v. Deek......-.......2. sees sees
Kitchenman vy. Skeel
Kitzinger v. Sanborn
Klein v. Jewett
Kleine v. Catara....
Klapper v. Broume.....
Knapp v. Winchester..........-----.. 25+
Kniffen v. McConnell

Knight v. Egerton ...
Knight vy. Faith.....
Knight v. Foster. .
Knight v. Gibbs... .....
Knight v. Hughes.... ....
Knight v. Jermin ...
Knight v. Mantz..........
Knight v. Mitchell...
Knight v Wilcox ...
Knights v. Quarles.

 

 

Knowlton v. Bradley...
Knox v. J

  
  
 
 
 
 
 
 
  
  
  
  
  
 
 
 
 
  
  

Kolb v. Bankhead ... --. 59
Koons vy. Miller .... . 216
Kountz v. Brown.. . 58, 61
Kreg v. Wells ...... -.-.78, 102
Bribes Vi. JOMGB. isiccinssaciianwa vs sien awis aiciess 239
Kynaston v. Shrewsbury.......... -.. 529, 732
Lacey '¥:, Ailliccoscceasavecten Sasciawene os 107
Lacey v. Straughan.......... x -+. 33
Lackington v. Combes......... 194
Lacon v. Barnard............ . 512
Lacy v. Mitchell .......... .... -.. 52
Lacy v Reynolds.... ..-....... . . 182
Ladd v. Thomas ....... 28 .+» 5386
Lady Croft v. Lindsey 690
Lafayette R. R. Co. v. Hoffman... 102
Laflin v. Willard.............. .006- 10

afone.V. Smith «ss sccccsccces enwe ace ac 610
Laing v. Colder... .. 74, 709
Laing v. Stone ........ 2 oe... eee 842, 745
Laint v. Brolaski . --» 170
Laird v. Pim... .. « 283
Lamb y. Gallard.... . 579
Lambarde v. Older - 189
Lambert v. Pharis - 155
Lamert_v. Heath.. . 246
Lamond v. Davall . 239
Lamont v. Crook ... 618
Lamos v. Snell . 48, 150
Lampman v. Co ss. 208
Lamponvy Corke.... « 294
Lancashire Wagon Co. - 606
Tanda % Oba cay svnce aceenesy saree 122
Landsberger v. Magnetic Tel 414
Lane v. Atlantic Works. .... 101

Lane v. Cotton.
Lane v. Hill...

 

Lane v. Thompso:
Lane v. Wingate .
Langley v. Brent
Langridge v. Levy..

Langton v. Waite .........-...... cece eee 258
Lauter v. McEwen. . oe. 644
Lantry yv. Parks... eepege+ 805, 808
TasiE or Caszs.

 
    

 

   

  

 

 
 
 
  
  
  

 

   

 

 

   
  

  
  

 
 

 

 

   
 
 
 
 
  
  
 
  
  
  
  
    
   
   
  
  

 

 

 

 
    
        
  
      
     
     
 

 
 
    
      
        
  

   
   
   
 
 

 
 

 
    
 

  

 
   
  

  
 
 
 
  
   
 
  
 

  
   

   
  
 
  
 
   
   

Paas.

Laraway Vv. Perkins.... .... ........ . .283, 709 | Lewis v. Moreland ...............5

Larios v. Gurety... ..............5. 18, 31, 85} Lewis vy. Niles.......

Larkin v. Buck...................00008 805, 809 | Lewis v. Peachey .

Larned v. Buffington...... -. 631} Lewis vy. Peake....

Lasala v. Holbrook .... . 1] Lewis v. R.R. Co.

Latham v. Brown.... ...... . 498 | Lewis v. Rucker............

Latham v. Latham & Gethin . . 669 | Lewis v. Ship ‘‘Success’’...

Lathrop v. Hyde.............. 620 | Lewis v. Smith...................

Lattin v. Davis.... 265 | Libbey v. Tolford...

Latour y. Latour . 667} Libhart v. Wood........

Laubenheimer y. Mann... . .. 203] Lienow v. Ritchie... ...

Laura Jane v. Hagen.............. -. 218] Lillard v. Whitaker......... ...

Laurent v. Chatham Fire Ins. Co......... 443 | Lilwal v. Smallman....... ..... - 587
Laurent v. Vaughan ............21, 26, 69, 395 | Lincoln v. Chrisman. ........... - 155, 619
Law vy. Indisputable Ass’n Co 441 | Lincoln v. Claflin ........... - - 218
Lawless v. Collier............. 43 | Lines vy, Mack 4 «6:4 503 seen: 4 --.- 219
Lawrence v. Jenkins . 92 | Linford vy. Lake.............. - 168, 593
Lawrence v- Rice....... 10 | Lindsay v.Jackson............0 02. cseeeee 185
Lawrie v. Dyeball ....... 723 | Lindsey v. Danville . 16, 96, 108, 598
Lawson v. Storie.. ....... .. 731| Linn v. R , ve. B54
Lay v. Lawson......... . 621} Linney v. Maton. ......... . 640
Lazarus v. Cowie . . 848] Liningdale v Livingston .. » 802
Lea v. Henderson . . 660} Lintott, Ex parte.......... 234
Lea vy. Whittaker. . 212 | Lipe v. Hisenlerd . 658
Leach v. Thomas... » U1) Liskiag WBN cncacanne wonrsa cys cane +» 155
Leaird v. Davis. .. 584 | Lister vy. Perryman...... 562, 571, 585
Leary v. Laflin..................- 212 | Lister v. Wright ...........00.ccc cess eeees 152
Leather Cloth Co. Hirschfleld............ 82 | Litchfield Coal Co. y. Taylor ............. 07
Leavenworth v. Pack 186, 249 | Little v. Riley ................ 219, 222
Le Blanche v. L. & N. W. Ry. Co..... 30, 398 | Little v. Stanback..... eceae. 1b
Lechmere v. Fletcher......... .... 730] Littlejohn v. Greeley.. 61, 616
Lechmere v. Hawkins .. . 174| Litton vy. Young ........... 0... eee e cece ee 621
’Le Cheminant v. Pearson .. . 467 | Livie v. Janson..............00008 eee eee 467
Le Coutier v. L. & S. W. Ry. 407 | Livingston v. Ackerston ......... ....... 307
Ledbetter v. Morris oe 12 | Livingston v. Douglass.........-........55 718
Lediard v. Boucher. 148 | Lloyd v. Morris... .. 728
Ledwith v. Catchpole. . 588} Lloyd v. Mostyn...... 02. cece cece ee ee 122
Ledyard v. Jones .... 11 | Lloyd v. Quimby... 292
Lee v. Ayrton.... - 611} Lobdell v. Stowell... ........ cece eee ee eee 15
Lee v. Bullen.. 194 | Lock v. Ashton.... 570, 593, 742
Lee v. Dean ..... 122 | Lock v. De Burgh................. 0.00 eeee 358
Lee v. Henderson 659 | Lock v. Furze...... 289, 291
Lee v. Hodges . se. 452
Lee v. Howard . we. 674
Lee v. Huson 621 | Lockley v. Pye .. 526
Lee v. Lee 185 | Lockwood v. S 288, 290
Lee v. Munn ... 227| Loder y. Kekul - 264
Lee v. Riley . 93| Loft v. Denis . 854
Lee vy. Rook ... 427] Logan vy. Cox. ---. 370
Leeds v. Cook 63, 655 | Logan v. Hall 133, 425
Leeson v. Smith -+- 740 | Logan v. Moulder........ --..-...2..+25+ 54
Leigh v. Lillie .. 204 | Logan vy. Tibbatt . - 167
Leigh v. Paterson 250 | Lohre v. Aitchiso: 464
Leigh v. Thornton . Lohrfink y. Still. ... 0.0.00... cee e eee eee 87
-Leighton v. Wales.. Loker v. Damon..............ee0s ees 321, 541
Leister v Smith..... Lond., Bomb. & Med. Bank v. Narraway, 191
Lefanu v. Malcomsom . 19
Leffler v. Dermott ..... L. &N. W. Ky. Co. v. Glyn

Leftley v. Mills....... L. & S. W. Ry. Co. v..James

Legatt v. Tollervey............22.eeeeeees Long v. Brougher .......-...0sseeeeeeeeees
Leggett v. Baker ......--..66. cee. eee eeae Long v. Eakle.... .. . .
Leggott Vs COOPER s oisa-seeissteee seey ease G52 Long v. Fleming sees aes vaya penveceacecee
Lehman v. Brooklyn .. 54 | Long v. Long........-- cee eee cnet rere neces
Leland v. Stone. .............. 5 piel Long v. Morrison.

Lelland v. Cumberland Bank............. 572 | Long V. Perry.........s¢ececcceccescrescee

Le LBP Y. BEIShOW «5 cnniwennnin nae cememeee 160 | Long v. Rodgers ...........:seceeeee cece ee
Lennox v. United Ins. Co........... - 472} Long v. Towle. ...

Leonard vy. Allen......... picatelainlase:a siaGieen 155 | Longmeid v. Halliday.............
Leonarda v. Phoenix Ins. Co............. 453 | Longmuir v. Thomson...........

Lester v. Barnett.. .........-.........---. 750] Longstreet y. Reeside...... ........

Lester v. Lazarus ... .....6005 22 cee e eee 174 | Lonsdale v. Church....... .-+-...06-
Letchford v. Starus............-.....0000 215 | Loop v. Litchfield .........

Lethbridge v. Mylton, 13, 295, 378, 418, 421, 745 | Loosemore v. Radford..

Letton v. YOUNG. ccssaaws vei anenecna 620, 752 | Lord v. Gaddis ......
‘Leveridge v. Forty ........---00..-0eeesee 716 | Lord v. Grow......... Secor deen ake Same Be
Levi vy. Brannan...............--. .. 579, 587] Lord Ashdown v. White.............

Levy v. Hale........ ...26. 606 | Lord Cawdor v. Lewis ............. ey

Levy v. Langridge Lord Clifford v. Watts.............

Lewis v. Black ....... ... 642 | Lord Gower v. Heath............

Lewis v. Campbell Lord Lonsdale v. Church....... .. . 840
Lewis v. Cosgrave........ ....s+s++2++ +. 849] Lord Newborough v. Schroeder,. 426
Lewis v. Few .........-+ va) ciingiscisleteieterarstetertietein 158 | Lord Oakley v. Kensington C. Co. 141
TINS FBG cerns cones sesanaeansniooneay. ve8 283 ' Lord Townsend v. Hughes........ .....-. 626
liv

PAGE.
Loring v. Warburton ... ..... vslivteuheiceaneee 536
Loton v. Devers Xe 120, 518
Love v. Honeybourne . ... 685
Lovel v. Whit! ridge...
Lovelock v. King.............-...
Lovett v. Salem, etc., R. R. des

   
   
   
 
 
  

Lowden v. Goodrick. 1
Lowden vy. Hierous....... 613
Lowe v. Booth....... 407
Lowe v. Harewood.

Lowe v. Peers...

Lowe v. Steel.......
Lowfield Vv. pene x
Lowman’s Appeal
Lowndes v. Earl of Stamford & War ng- oy

       
 
   
 
  
 
 
   
 
 
 

 

Lowther vy. Comm...
Loyd v. Hannibal & St. J. R
Lozano v, Janson..

 

 

Tasie oF Cases.

 
 
 
  
 
 
  
 
  
 
  
 
 
 
 
 
  
   
  

McDonald v. Harrison ....
McDonald v. Hodge
M'Donald v. Raoke
McDonald v. Snelli
McDonnell v. Buffum
McDowell v. Crook.
M’Dowell v. Tyson.
McGarry v. Loomis
McGavock v. Wood..
McGehee v. Harrison
McGehee v. Shafer...
M’Givney v. Phoenix In
McGovern v. Lewis.
McGregor v. Grego
McIntire v. Clark .
M’Intyre v. Belcher
McIntyre v. N.Y.
Mcllvane v. Wilkins.
McKee v. Ingalls. .

 

  

  
  
 
 

  

Lucas v. Farringto 336 | M’Kenna v. arnett ‘
Lucas v. Flinn... . 60 | McKenney v. Haines.
Lucas v. Godwin. 302 | McKeon v. Citizens’ R. R. Co.............
Lucas v. Heaton . 243 | McLaughlin v. Bascom..... siaaieeis oe Statin 620
Lucas v. Tarleton 580 | McLaughlin v Corry............. 76, 137, 598
Lucas v. Trumbull. . 506] McLean v. Fleming........ 0 ..........-.- 387
Lucey v. Ingram........ .. . 405| McLeod v. McGhie................... 500, 507
Luckett'v. Clark isi: scsscccscccceess . 750} McLoughlin v. Welsh................ 633, 713
Lucy v. Mouflet .. ........... 264 | McKinley v. Rob....... 1... -..----2 0 642, 644
Lukin v. Godsall.... 2.222222: ... 541] McKinney v. Bellows.......... ......--065 15
Lumbarde v. Older.............-0000. cee 179 | McKinny v. Watts............2..-26- sesso 292
Lumley v a McManus v. Lancashire................... 410
Lund v. Kins 220} McMillan v. Vanderlip............... 305, 309
Lusk v. Smith McNair v. Compton...............-.---+0+ 275
Luxmore v. Robson McNamara Vv. King....... .... ... 59, 60, 750
Lyddall . Dunlap .. McNaugbter v. Cassaily. aueia. JUNE Veeika lente 239
Lygo v. Newbold............++- McNeese v. Herring....... ......-.-.020- 572
Lynch v. Bragg.............-ce econ McNutt v. Lancaster..........-...-.+e20-5 752
Lynchi v. Dalzell visscisecee-tsasessieg seca eweies 443 | McNutt v. Young.. sieves a ANatat. ere <atpiate dle BDO:
Lynch v. Knight... McPherson v. Daniels...........+..+...... 152
Lynch v. Murdin.................055 sees 101 | McQuaig v. Quaker City Ins. Co.........- 444
Lynd y. Picket ....... weeds seincees McQueen vy. G. W. Ry. Co.....-........... 409
Lynde v. Thompson.. McRae v. Lilly ............ iets
Lyne v: Lyne .. . McRae v. O’Neal........
Lynne v. Moody McWilliams v. Brag;
Lyon vy. Fox..........0.-e00s McWilliams v. Det. dere
Lyons v. Martin... Mabson: Vs Buk. oci-ceccsieujsasiess. catasieats
Mack v. Brag;
Maberley v. Robins ........-.....-2.000-05 227 Mackingon ¥- v.
McBean vy. Ritchie...... ars eats <atece 576 | Maclean v. D 239
McAlexander vy. Harris... ..... Macleod v. Wakley.............-. -..-.2-- 617
McAllister v. Rea ............ Macnamaravy. Vincent........ .. ... .... 364
McAllister vy. Sibley.... .. Macrow v.G W. Ry. Co.......... .....-. 413
McAlImont v. McClelland... Macon R. R. Co. v. Winn.. ... 108, 109, 755
McAlmont v. Mortsinger Madden v. Madden. ................. » 221
McAlpin v. Lee... ... .........0..00- Madden v. Porterfield... ................- 317
McAlpin v. Wingard, Magee.¥;; Lavell is ces, aswaxt ov sexes ors 21
McAncany v. Jewett 12} Ma, uae v. Dempsey.. Re Riabet ath 689
McAndrew v. Mlectrié Telegraph us » 414 OP Wi RU OV soos sec cexeuicis: Seeecivenbios 249
McAroy v. Wright ...........-..- ween v. Bickford . abe! | Bethe 219
McArthur v. See Mahurin v. Pearson.................002005 17
McAuley v. Birkhead . Mainwaring v- Brandon.... ... ......131, 701
McCabe v. Platter

    
 
 
  
  
 
   

McCagg vy. Woodman ..... ..... .

 

 

Malachy v. “Soper eerlaniia aan weed 3
Malden v. Fyson.... :

   

 

 
 
 
 
  

McCallv. McDowell....... ... .. oe - Mallet vy. Ferrers ..

M’Cance v. L. & W.Ry. Co..... ... 412] Mallough v. Barber..

McCarthy v. Abel......-...-.0000+ 458, 462 | Malone v. Murphy.... .......

McCarthy v. Guild ............. as Maloy v. N. Y., etc., RK. R. Co.. - 96
McCarthy v, Niskern.. Maltby v. Harwood.....--.ee.sccceeeeee 307
McCarty v. Ely......... MAM Vi State iaisiciseicsiciaiis snpsieoa Sach Biiarniaincssaie 659
MoClintock’s peat 25 | Manchester,.S. & L. Ry. Co. v. Brooks.. 176
McClintock v. Crick 150, 651 | Mangan v. Atherton ..-..............00005 101
McCloughan v. Clayton.. ..... 572 | Mangam v. Brooklyn C. R. R. Co......... 102
McClure v. punks Fatiiats -229, 340 | Man hattan Ins. Co. v. Webster .......... 453
McClure v. Gamble . «+. 2921 Manley v. Boycott. ee 848
McClure v. Pyatt....... 815 | Manly v. Wilmington, etc., R.R Co. 107
McCollom v. Seward. . 207 | Manny. Ev6rtsOiiccsccseseerenenanax seeu 270
McConihe v, Hollister . . 169} Manny. United States. sae
McCord v. Williams. . Mansell v. Clements 705, 706
McCormick v. Sisson Mansfield v. Ogle............... 0... eee e ee ee 228
McCormick v. Young Manton v. Bales......... .. ccs eee eee es 143
McCraken vy. Webb Mantz v. Goring.........-....cc cece cece 368
McDade v. Mead.. 0 | Manf’g Co. vy. Lawrence .................. 270
McDaniels y. Parks... 11.0000...) Manville v. W. U. Tel. Co... 2.0002) 40

 

 
TasLe or Cases.

   
 
  
   
 
 
  
 
 

PAGE.
Maples v. Avery..........5 cece nee iad LIB
Mapes v. Coffin................. Sse denies 452
Mapes v. Weeks.... 0... ..cecceeeeee eee 149
March v. Portsmouth R. R. Co.........,.. 229
Mardall v. Thelluson................... 6. 180
Markham v. Middleton .. st cones M3
Marler v. Ayliffe....... .... cee e cece eens - 729
Marris v. Marris.... ......... 6 cee eens 6
Marriotte v. Cotton .. . 3
Marsh v. Rulesson ..............+.

Marshall v. Betner. ...
Marshall v. Broadhurst .
Marshall v. Bussard
Marshall, Ex parte .

Marshall v. MeConneit
Marshall v. Maddock..
Marshall v. Piles.... ..
Marshall v. Poole...
Marsham v. Buller.
Marston vy. Hobbs..
Marston y. Phillips.
Martin v. Crokatt ..

Martin v. Great Indian Pen sulla Ry:

 

  

 

2| Mentz v. Second Ave. R. R.Co

40 | Merchant’s Shipping

 
  
  
  
 
 
 
  
 

Melen v. Rede i
Mell v. Mooney...........- aySsonus
Mellish v. Andrews......... sia
Mellish v. Richardson...........
Mellish v. Simeon............ ..eee
Mellor v. Bodderley ................cee eee
Meniffee v. Ball................ 20005
Menkens v. Menkens..............

Mengies v. N. British Ins. Co........

Mercer v. Graves... 0.22... cece seen eens 17.
Mercer v. Irving..
Mercer vy. Jones .
Mercer v. Whall..

 

 
   
  
  
 
 
 

Merest v. Harvey..... atdererm asians 56, 550, Mt
Merriam vy. Mitchell .... ..............005
Merrill v. Howe.. ia

Merrill v. Merrill...
Merritt v. Merritt
Merrill v. Peaslee ..

 

 

Co. . 409 | Merriwether v. Bird.... . . 167
Martin v. G. N. Ry 95 | Merrywheather v. Nixan - 17
Martin v. Kuozmull 174| Mertens,v Adcock......... 239
Martin v. Payne.. ... , 658 | Messmore v. N. Y. Shot Co 36
Martin v. Porter. 546 | Metcalf v. L. B. & S.C. Ry 409
Martin V. R00 ..22.2.ccccee ees coer eeeees . 683 | Mettlestadt v. Ninth Ave. 109
Martin v Schoenberger . 808 | Metropolitan Association v. 558
Martin v. Strong....... 621 | Meyer v. eo ane Vininateainn stvaaieiw swale - 620
Martin v. Van Schaick 152 | Meyer v. Dresser .. 386
Martin yo Winder... pcsescniae an -.» 174| Meyer v. Ralli...... 457
Martiniv., Wrighticse.. sis docs soeeauiccnees i 53 | Meyer v. Schultz... . 164
Martineau v. Kitching................. .. 451 | Meymott v. Meymott .. estes ahi a eas 229
Martinez v. Gerber .... .. 19, 81] Michael v. Gillespie........ ..........040. 457
Marzetti v. Williams . 8, 423, 704 | Michigan, etc., R. R. Co. v. Caster.. 395
Mason yv. Barker ....-.......--.0 eee seer ee 143 | Mickel v. 'Miles....... PHY Kageesis: uk

 
   
    
 
 
 
   
 
  

Mason v. Hill.
Massey v. Sladen
Massey v. Taylor ....
Masten v. Deyo.....

 

8| Mickles v. Grant

71 | Middleton v. Bryan.

 
 
 
 
  
  
 
  
 
 
  
 

Mickles v. Hart................2.065
Mickles v. Rochester City Bank..

Masters v. Farris Middleton v. Magnay ...........

Masters v. Warren 74 | Middleton v. Pol oe: tsioteuston eters veratagd Sores
Masterton v Mayor......... 17, 36, 37, 84, 244 | Miers v. Lockwood............... ..-
Mathew v. Sherwell................0-0005 499 | Milburn v. Belloni .

Matthew v. McKinnon........... ... 812| Milburn y. Guyther..

Matteson v. Curtis ........... 62 | Miles v. Harrington. ........

Matthews v. Beach... 152 | Miles v. Miller........ esi areend

Matthews v. Coe....... 493 | Miller v. Beverlys .............. 221
Matthews v. Cribbett.. 52| Miller v. Brown........ 0 sisie1or4 588
Matthews v. Davis ............-... - 150 | Miller v. David .............. 638
Matthews v. Discount Corporation...... 701 | Miller v. Elliott ....... ... cece cece erence es 202
Matthews v. Menedge .... .......- - 500 | Miller v. Goddard f eaeiitettaaaietaes Bibs 317, 324
Matthews v. Terry........... 310} Miller v. Kerr ............... . 618, 6
Maunder vy. Venn 412 es enee - 80) Miller v. Mariners’ Church.....

Maurifet v. Brecknock.. . 144] Miller v. Miller...... srbcaie orevsints

Maw v. Ulyatt ......... i Miller v. Milligan...........

Maxcy v. Knight.. - 217] Miller v. Tetherington

Maxted v. Paine ..... . 246} Miller v. Thompson ...

Maxwell v. Jameson.....

 
   
  
  
 
 
 
 
 
 
 
 
  

May v. Brown ........ 648
Maydew v. Forrester........... cseeeee ee 701
Maye v. Toppan .... . . 540
Mayer v. Mayer - 155
Mayhew v. Eames. - 407

Mayhew v. Nelson...

 

Maylam v. Norris ....

Maynard v. Beardsley . tase 153
Mayor v. Butler ........ «. 381
Mayor v. Holmes...... ...... - 109
Mayor v. Parker V.S.8S. Co. . 171
Mayson vy. Sheppard....... 152
Mead v. Bashford : . 175
Mead v. Gabon 621
Mead v. Gillett . 170
Mears v. Griffin . 45
Mecklem v. Blake . 12
Medaugh v. Wright apie asia( sanerei eves « 620
Medbury v. N. Y., etc., R. R. Ge. 24
Medway Nav. Co. v. Romney.. case 9
Meech v. Smith ..... 215, 228
Meeker v. Thompson 1

 

428 | Miller v. W.

 

 
  
 
  
 
 
  
 
  
  
   
 
 
 

Miller v.
Miller v.gWoodfall .
Millot v. Lovett . 3
Mills v. East London Union.
Mills v. Jefferson... .... ....
Millsv.N. ¥. & H
Mills v. Trumper
Milner v. Tucker .......
Milsom v. Hayward .
Milton v. ‘Bincushent,
Milward v. Hibbert.
Milwaukee, etc., R. R. Co.
Minissinger v. Kerr
Minor vy. Steamer Pickayun
Minshall v. Dare sisi Reasivaiatoa
Miss. Cent. Cc
Mitchell v. Borden
Mitchell v. Edie
Mitchell v. Haze

 

 

68! Mitchinson v. Cross ..
 
 
  
 

   
  
 
 
 
 
 
 
 
 
 
 
 
  
 
 
   
  
  
 

  

   
 

 

Moor v. Teed... .. 599
Moorsom v. Page 388
Moran Vv. Dawes..........000.02 cece seer ee 657
Moran v. Jones..........:. cee cee eee eee 468
Moravia v. Hunter. t
Mordant v. Thorold............. ..... 6. 481
Mordue v. Dean & Chapter of Durham.. 545
Mord ¥- Ve. JONCS 6 .6.c:sicisisieis sis.s 0 0185 sisisisre stesiniaioia 4
Morehead v. Jones. ...

Morewood v. Pollock .............-0e.eeee 407
Morford v. Ambrose..........2...c essen ee 305
Morgan v. CrocKker.......-....ceesscee eens 109
Morgan v. Hughes ........... ....eeeeeeee 593
Morgan vy. Livingston........... 621, 651, 752
Morgan v. Metropolitan Ry. Co.......... 282
Morgan v. Negley............-seeseeereces 39
Morgan v. Powell ....... .eeeeeeeeee 495, 546
Morgan v. Richardson........... 2... 2. 349
Morgan v. Reynolds - 533
Morgan v. Steble.................4- - 695
Mornington v. Try ..... 0... «1... s+. 137
Morrell v. Irving Fire Ins. Co....... -.. 442
Morris v. Barker ..... seruemenanesd ... 149
Morris v. Cleasby ........... .. . 182
Morris ‘V. COPsOM was) cece o2c3 cer veeeeteses 572
Morris v. Langdale.. ....... 90, 629, 634, 638
Morris v. Levison ............ 22... 38) 7, 389
Morris v. Phelps ..... aaee DBy 109; 293
Morris v. Robinson . . 156, 405, 506
Mortis, ROWAN ccs ccre ovascneses ime ¥0 292
Morris, etc., Canal Co. v. xyerson.. 140

  
  

Morrish v. Murray saa sig ss wea enalala ek . 145
Morrison v. To os

Morrison v. Furnham .
Morrison v. Kelly.... ..
Morrison v. Robinson
Morrissey v. eins s Ferry Co.

 

Morse v. Auburn R. R. Co..... 74
Mors Le Blanch v. iiisse Seer 126
Mortimer v. Cradock.... .. 68, 497, 749
Morton v. Ludlow ............065 ceeeenes 217

28 | Murphy v. Donlan..

 

  
 
 
 
   
 
 
   
 
 
 
 
  
 
 
 
 
  
  

 

  
 
  
 
 
 
 
 
 
 
 
 
  

 

Munter v. et sieienaistelticbareitict 2

lvi Tas.e or Caszs.
PAGE. Pace.
Moberly v. ‘Alexander............... 61, 171] Morville v. G. N. By, CO ssseseeuicies aera 409
aiber ee Preston.... ... 641, 643 | Moseley v Hunter . . 10
PTIdge V. JONES .....-. sees e wee ne eeeeee 848 | Moseley v. Moss.... . 619
Molter v FAVE co: coe sirraaed names mikes en 383 | Moseley v_ Rendell . 685
Mondel v. Steel. 158, 266 | Moses v. Mead ....... » 268
Monell v. Burns.........ccceceeeeeee scenes 5 | Mosotti v. Page.... ...... 2. .e eee ene eee ee T
MOBTOG ¥. GatOS wiceeiscavivicscncanines © . _7| Moss v. Smitb.... 466
Monroe v. Stickney.........-.s-00+---- » . 11| Moss v. Thwaite............0... cece eee ee 509
Montague v. Boston Iron Works. .... .. 167} Mosse v. Salt . 222
Montgomery v. Byrne ..........-.ee+e eee . 836 | Mossey v. Banner. . ---. 690
Montgomery v. Wilson .............-0.00+ 526 | Mott v. Burnett. caneva 16D
Moody v. Baker ...........eeeceece cree eens 640 | Moule v. Garrett... 424, 433
Moody v. Dean .... ... csc cece ects ee ec cee 361 | Moulton v. Beecher.....- ---.--. -+------ 567
Moody v. Leverich .. 317, 321, 825 | Moulton v. Scruton.... 3
Moody v. MeDonald.. 57, 1; 597 | Mount v. Harrison...
Moody v. Pheasant.........-..seeeeceeer ee 838 | Mountford v. Gibson
Moody v. Whitney........-...eceeeeee cee 489 | Mountford v. Willes ..
Moon v. Raphael... 502, 507, 521 | Mousler v. Harding.......
Moon v. Towers ... ......seseee scenes 568, 580 | Mowatt v. Londesborough 234, 285
Mooney V. H. R. RB. Co... . eee eee eee 105 | Mowry v. Whipple ..........-.....2eeeeeee 576
Mooney v. Kennett .......-.....00 eee eeee 60] Mowry v. od : 4
Moore V. Aldrich..........065-seeeeeeeneee 492 | Moyer v. Pine
Moore V. ADGerson ....... 2. ee cece eee 13 | Moyes v. W00d .... 2... eee eee eee eee 825
Moore vs Bond. 3s) cieienensececcsn s graces 651 | Mudun Doss v. Gokul Doss....... ....... 518
Moore Vv; Clark cox scecceeccsasdeie aeveass 370 | Mullen v. Gilkinson
Moore v. Crose 0... ceeee cee tener eee e eee 60 | Muller v. Eno........
MGOre V.. DAVIS icici oso ctteasiecdial tude 18 | Mullet v. Challis....
Moore v. Drinkwater......... ..-.....604. 516} Mullet v. Hulton ..
Moore V. Floyd.........eeeecee sees tees 11 | Mullet v. Shedden..
Moore v. Howard... 804 | Mullett v. Hunt....
Moore v. Leverich..... ........sceseeeeee 324 | Mullett v. Mason..
Moore v. Meagher. 628, 639 | Mulliken v. Winter.. ‘
Moore V. MOOTC ........ 000 cece eee e eee nee 609 | Mulvehall v. Millward... 657, 658
Moore v. 225 | Mumford vy. Oxford, Worcester, & Wolv-
Moore v. 206| erhampton Ry. Co 543
Moore v. . 428] Mundy v. Culver. -- 201
Moore v. - 108] Munns v. Dupont . 571
Moore v. . 572| Munro v. Butt. 301
Moore v. . 647] Munroe v Gate: 11
Moore v. . 561] Munroe v. Leach. - 105
Moore v. . 740! Munroe v. Stickn 7
Moore v. és 222
,

Mure v. Kaye..
Murgatroyd v. Mu:
Murison v. Butler

Murphy v. Redler..... ..
Murray v. East India Co...
Murray’ ¥: Galle cs. cccaienscmone wrenleayncas 2
Murray v. Hudson R. R. Co.... ........ 64, 755
Murray v. JenningS..................2. 6.

Murrayv Long.......
Murray v. Pate...
MULray Vis SUID ss. co seins oS diners ois tiatans dacalea
Murray v. Toland
Murray v. Ware............22.... 005
Murray v. Williamson................
Musgrave v. Beckendorf
Musgrove v. Newell... ............0000005

Musser, Prige@: viessee.05 a cass eee penaeny
Mut. Ins. Co. v. Andes Ins. Co........... 446
Mut. Ins. Co. 7, Deals. sevens axxa deus ana 452
Mut. Ins.Co. v Ingram ................. 446
Myers v. Burns .. .........0 0 ..ece eee cee IK
MY ORS Vie HAY sicisss rss disseicteiain- eis eave vine subsaien a 202
Myers v. Malcom............6.. 6. ceeeeeee ly
Myers v. Walker................ cece eeeeee 215
Mytton v. Midland Ry. Co................ 413
NAIL. BUN vec soresssceraianniinute wawalee's wien 641
Nalle v. Ventress........ 0.6... cece eee 220
Nantucket Pacific Bank v. Stebbins .... 186
Nantz ¥, LOD@r iene, gic 6 peaxisaes iawn 229
Naoroji v. Chartered Bank.... .... ...... 193
Napier v. Schneider ............. .....005 350
Narracott v. Narracott & Hesketh ....... 669
Nargett ¥ NiaS 0.0.25 cenwas sacs ane 536
National Assurance Co. v. Best..........
Nederal Bank of Comm. v. Merchants’
er ee en 218
Nat'l ae v. Lovering.... ....... 215, 225
Neashiv GU Cassis sii %, sects, gaamcersies tag esis 535
 

  

Tas Le oF Cases. lvii
Pact, PAGE
Nash v. Hermosilla ..............0-0seecee 202} Norton v. Gordon .........eee cece cee eee 651
ORT siceers ciex Nosler v. Hunt ... .......-seseeee 54, 286, 288
Waheaee —weRags. EES Nossettie v. Page ttengesie Bolly
Notaree v. Henderson ................ 006

   
 
   
  
  
 
  
  
 

Nations v. Cudd ..
Navone v. Haddon.

 

0 | Nott v. Stoddard... ...

 
  

Nowell v. Roake ...
Nowlan v. Ablett..

 

 

 

  

Neal v. Keel........ Nudd v. Wells.......... 0.6020. c55 cee eeee
Neal ve Wy lli@iscen sis ineniiecaiecees 440 a Nutting v. Herbert .

Neale v. McKenzie..........-.....-..-0-5- 358 | Nye v. Merriam..............2. cee see e eee
Neale v. Ratcliff.................... 202008. 370

Neale v. Wyllie............ cece eee ee ee eee 2x | Oakes vs Barrette: ci ices cecawcn. wide id aas a2
Needham v. Erase. ctesetae Gn .. 614] Oakes v. Spaulding....... aid. a i aiatenghge OD
Nelson v. EvaDs .............00.0 eee 149, 642 | Oakley v. Kensington C. OOr at ves den ed 441
Nelson v. Felder....... .....ccecsceees 219} Ovkenden v. Henly..............-- ea tah Ok
Nelthorpe v. Dorrington ................. 503 | O’Conner v. Forster:.............-.

Nesbitt v. Lumber Co O’Connor v. Spaight suey idirennaess ly

Nettles v. Harrison.. O’Driscoll v. M’Burney..

Newall v. Jenkins....... ‘)ffutt v. Earlywine........ ........-2--05 641
Newberry v. Trowbridge........ ........- 184] O’Grady v. Julian......

Newborough v. Schroeder .......... .... 426 | Halloran v. Studdert :

Newcombe v. Green...... ...... .. 735 | O’Halnan v. G. W. Ey oe, scrutiny hse 29, 401
Newel v. Keith..... Ogden v. Gibbons.... ...... .--..--..-- . 152
Newell v. Downs 73 | Ogden v. Marshall.. - .26, 69, 395
Newell v. Jones........... .. Ogilvie v. Ogilvie... 2.0.0.2... cee eee 220
Newell v. Nat. Prov. Bank . Ogle v. Earl Vane..... aussie sted 246, 253
New Hampshire v. R. R. Co.. Ohl v. Eagle Ins. Co........ -.. 602 cee eee 453
Newhouse v. Miller............... OKell Vi SMM thie seis coacinsiviccereaiien eae a 264
N.J . Co. v. Nichols . Okeson v. Patterson .........5 -eeeee eee ee 542
Newman, IN £0 si icexs Old Colony R. R. Co. vy. Evans.......... 283
Newman v. Bailey .. Oldershaw v. Holt........ 2.2... 162, 358, 372
Newman v. Bernard. Oldfield v. Harlem R. R. Co.... 0... ee. 102
Newman v. Cozalet.. Oldfield v. N. Y.& H.R. R. Co. 15

   

Newman v. McGregor. 2
Newman v. Zacha
New Orleans, etc.,

.R. Co. v. Hurst... 63

 

New Orleans, etc., R. R. Co. v. Moore, Be
New Orleans R. R. Co. v. Moyl......-.... 168
New Orleans R. R. Co. v. Stathatn 59
New Quebrada Co. v. Carr ............... 193
Newsam y. Carr .......-.....0005- 562, 569, 588

New Sombrero & Phos. Co. v. Erlanger.
Newton vy. Conyngham ..
Newton v. Forster...

Newton v. Grand Jun
Newton v. Horland
Newton v. Newton
New York v. Hamil
New York v. Teener 3

   
   
  
    
  
 
   
 
  
  
  

Nichol v. Bestwick.
Nichol v. Thompso
Nichols v. Hayes ...
Nicholls v. Wilson ...
Nicholson vy. Coghill ..
Nicholson vy. Willan ...
Nicklesod v. Stryker ..
Nicklin v. Williams. .
Nicolet v. Ins. Co
Nicoll v. Greaves.....

Nightingal v. Devisme.
Nightingale v. Scannell. .
Nisbet v. Smith
Niver v. Rossman......
Noble v. Ames’ Mfg. Co.
Noble v. Edwardes...
Noke v. Ingham......
Nones v. Northouse
Noonan v. Illsley....
Norris v. Elliott....
Norris v. Litchfield

 

3 | Osborne v. Moor

 

  
  
  
   
   
   
   
 
  
 
   
 
    

Olmstead v. Beale.... ...-....-+2-0--
Olmstead v. Brown..
Olmstead v. Burke..
Olmstead v. Patridge
Olmsted v. Miller.......
Onslow v. Orchard
Ordway v. Colcord ae
Oriental Commercial Bank v. Savin .... 690
Orme v. Broughton..
Ormsby v. Douglass
Orr v. Maginnis.

Osgood v. Lewis. .
Osterhout v. Roberts
Ottawa v. Sweely .
Outcalt v. Durling .
Outton v. Barnes.
Overbay v. Light
Overhiser_v. McCol
Oviatt v. Pon
Owen Vv. Brookschmidt
Owen v. Burnett
Owen v. Legh......
Owen v. McKean .
Owen v. O’ Reilly...
Owen v. Ruth
Owen v. Wilkinson ..

Owens v. Hodges.....

Owings V. Ulory.... .....6. cer eeee cee eeeee

Pacific R. R. Co. v. Houts
Packham v. Newman.... .
Paddock v. Salisbury. .
Padmore vy. Eewrance sae

Page v. More.... .-..
Page v. Hewman.
Page v. Parker .

North v. Cates ..... Paige v. O’Neal..

North yv. Wingate ..... 0... -.s. see eee ee Paget v. ‘Anglesey. ie saat
North of England Ins. Ass. vy. Armstrong, oF Pain v. Rochester ......--.... ... eee eee
North Penn. R. R. Co. v. Adams..... 217, 225 | Paine v. Paulk ........-0..ee ecco erence cee 220
Northam v. Hurley.... ....... ..8, Painev. Pritchard............ .-.0. sees 500
Northern Bank v. Kyle .. : see Paine v. Sherwood................5. 18, 19, 256
Northern R. R. Go. v Akers. ... 1|Paler v. Hardyman... 8 513
Northern, etc,, R. R. Co. v. State | res 109 | Pallett v. Sargent .. ; 641, 642, oe

Northup v. Cook.. ............-.-
Hq

9
248 ' Palmer v. Blackburn
    
 
 
 
  
 

 

lvili TasLe or Cass.

PaGsE. Paae.
Palmer v. Fiske......... ae Saideeht aidsste stacsees 750 | Pekin v. Reynolds .............. Seeeh Sa, 217
Palmer v. Gallup .. : Pell v. Shearman.......,..+++ 373
Palmer v. Haskins... Pelouze v. Stewart 308
Palmer v. Stockwell . Pemberton v. Collis .........-. 2. eeeeeee 631
Pangburn v. Bull......... Pembroke v. Bostick .............000.0005 482
Panton v. Williams.. ....... Penley v. Watts ..............20..6- 188, 425
Pardee v. Robertson ..... Pennell v. Woodburn ..........2--.00.0005 131
Parfitt v. Chambre Penniall vy. Harborne... ........ esses 282
Parish v. Wheeler .. Pennington v. Brinsop Hall Coal Co..... 557
Parker v. Elliott ............- §| Pennington v. Meeks .. ... ..... «1.666 616
Parker v. Farly.....-...-. +++. Pennsylvania v. Jack..........- .606 cere 82

 
  
  

Parker v. G. W. R. R. Co
Parker v. Huntington
Parker v. James
Parker v. McKenna ..
Parker v. Sanborn ...
Parkes v. Prescott...

  
 
 
 
  
 
 
 
 
  
 

' Park v. Cheek.........-.- «+

Park v. Hammond.... ...... BEL

Park v. McDaniels ... ..--... 20+ eee es 492
Parks v. Boston ........-.2.+++ wee eee 188, 542
Parke v. Blackiston .........+..00+eeeees . 618
Parke v. Foster..........- 3, 228
Parkhurst v. Ketchum . 620, 646
Parkins v. Hawkshaw.. 337
Parkins vy. Scott...... 637
Parmer v. Anderson . 618
Parmeter v. Todhunt 459

Parana, :The........
Parrott v. Fishwick
Parry v. Averdein ..
Parsons v. Gill .
Parsons v. Harp:
Parsons v. Martin

 

 

   

 

 

   
 
 
 
  
  
  
  
  
  
   
   
  
 
 

Parsons v. Pettinge' .. 147| Perry v. Man....... ..
Parsons v. Sexton.... . 159, 161 | Persival v. Spencer........ .--. ---.--.5--
Parsons v. Sutton ... ........-e+e eee 239, 248) Peter v. Rich.............cc0.ee0 coeeeeoes
Partridge v. Hatch................ 58, 287, 293 | Peters v. Heyward ..............e eee eee
Parvin Vv. Hoopes........-.ec-e eens eee e eee 215 | Peterson V. Ayer.... sce ce cece eee eee e ee P47
Passenger v. Thorburn 17, 23, 270, 651} Peterson v. Hutchirson.................. 621
Patapsco Ins. Co. v. Coulter .. -. 453 | Peterson v. Morgan ........-.... -++- 642, 650
Patev: Grayicccicccciciccascecaca ne Petre v. Duncombe.... 226, 4380
Patrick v. Putnam........ .....-- Petrie v. Hannay.... .......-.-.05- 736, 738
Patridge v, EMson.............eeceee ce ee 4! Petrie v. Rose. 2. ..c. sce ceee eee eens 149, 643
Patt v. Flather............. -.. 246 | Pettigrew v. Bishop ....-...... ......---- 305
Patten v. He BR. CO. .ccccenncccesensaseee ae 109 | Pettis v. Bloomer.............. 0... -225. 202
Patterson v. Gage.......... 304, 310, 311 | Pettit v. Addington....-..........-......- TW1
Paterson v. Powell ...... -..sseseeeeee oe Phelin v. Kenderdine................ -.0+ 164
Patterson v. Ritchie ......... Phelps v. Goddard..................-.005- 561
Patterson v. Wallace ........ Phelps v. L. &N. W. Ry. Co............. 413
Patterson y. Westervelt 11| Phelps v. McGee ................00 00s: |
Paul v. Goodluck ............. 255 Phelps v. Owens ... 58
Paul v. Jones......- : Phelps v. Wait .... ...... 2... -... «0. «+ 109
Paul v. Slason .......... Philadelphia, etc., R. R.Co.v. Howard.. 36
Paukett v. Livermore. . Phila., etc., R. R. Co. v Quigley... 58, 61, 597
Pawly v. Holly.......... Phillbrook vy. Belknap ............-...-55 310
Payne v. Haine..... Phillips v. Beene ... 2... cece eee eee 650
Paynter v. Walker ..........-..----seeeee Phillips v. Bonham ...........20....0.00 + 584
Payson v. Macomber. Phillips ¥. Clark ssisscsccise siece cies views Satwsines 6 409
Peacock, ee parte iaiasegisidtan i atarayotbiaserst to taraceeers Phillips v. Hartfield...................004. 749
Peacock v. Monk... Phillips v. Hayward................ ...... 514
Peacock vy. Nichols................+eeeeeee Phillips v. Hoyle....... .....2. cee eee eee 661
Peake v. Oldham... Phillips v. Jones ............ 5-20 ee cece ees 614
Peale v. Hickle... 221 | Phillips v. Keifer...............0 cee seen ee 1i9
Pearce v. Ornsby. oh 2 | Phillips v. Perry Co. Ins. Co..... ....... 446
Pearse vy. Croaker.... .. 551, 563 | Phillips v. Reichert... ......... 0.2.2.0 292
Pearson v. Darrington..................5. 220 | Phillips v. Whitsed ....................... 532
Pearson V. Davis .....---.seeecee seer ee 54, 202] Phillips v. Williams. ..................... 217
Pearson v. Duane .........0..0eeeseeeeeeee 29 | Philpottsv. Evans.. ........... 244, 250
Pearson v. Henry... .........05.00 eee eee 685 | Phoenix Ins. Co. v. Hamilton ............ 453
Pearson: Ve We siccrassnisies cesaastenuaesaras 614 | Pianciani v. L.& 8. W. Ry. Co... ....... 404
Pearson v. Lemaitre..... 57, 164, 622, 623, 641 | Pickard vy. Bates ............ cece eee ee eee 752
Pearson v. Williams...  essse.sscaneeacas 209 | Pickering v. Bardwell. 240, 254
Pease Vi. Barbeless ti cs anexcweve cease ins 225, 228] Pickering v. James .............-- eee eee 12
Peck vs Hider... .:2c6o% sense sea cis seniors 8 | Pickersgill v. Brown ................005 222
POC Y, GUPBOy an io cc anitegsen goed aerawmh 118 | Pickwood v. Wright ........-.......05. 005 730
PPOCK Vis Rs RuEOCGy i.e. scsodasseejennse nse Saaieoie 63 | Piggott v. Birtles ..:. 533, 539
Peck v. North Staffordshire Ry. Co., 409| Pierce v. Benjamin............. 0. eee eee 503
410 | Pierce v. Dustin... oes LT’
Pedder v. Mayor............scecev eee -++e- 181] Pierce v, Fothergill.. wee 843
Peddie v. Quebec . s+e+ 446} Pierce v. Hoffman.... ... 168
Pedley v. Frampton... ........ ...... .. 736 | Pierce v. Millay.... 58, 61
Peet v. Chicago, etc., R. R. Co... 24, 26, 895 ' Pierce v. Roche ............22. 222 cee e eee 152

 

Penn. Canal Co.
Penn. Canal Co.
Penn. R. R. Co.
Penn. R. R. Co.
Penn. R. R. Co.
Penn. R. R. Co.
Penn. R. R. Co.
Penny v. Fay........-.-.-0+5+
Pennypacker’s Appeal
Penrice v. Penrice...
Penson v. Gooday .
Penton vy. Browne
People v. Gaines.
People v. Hallett...
Peoria Bridge Assn.

Peoria M. & F. Ins. Co. v. Wilson
Percival v. Stamp....
Perkins v. Lyman..
Perkins v. Portland R. R
Perley v. Balch
Perreau v. Bevan...
Perry v. Edwards ....

  
  
 
   
 
  

 

   

  

 
 

 
 
 
  
 
  
 
 
 
Tasie or Caszs.

 

  

 
  
 
  

PAGeE.
Pierce v. Rowe ..............cc cece eee ee 222) Preston v. Cooper......
Pierce v. Williams ............ 26. eee eee 125 | Preston v. Strutton.............
Pike v. Dilling «2.0.0.0... 0c. cee cee eee 68| Price, Ex parte.... .. ..........
Pike v. Madbury ........ .......... efcnveets 3] Price v. G. W. Ry. Co
Pilkington v. Cooke .... .......-......5 0+ 610 | Price v. Phillips. end Wiebeaedeitsedateta b's An
Pilkington v. Scott ............ .c6. sees 5| Price v. Severn...........ccce cece cece oees 157
Pillsbury v. Mitchell............. Price v. ae valay Aalaeiuwirstuoniatnay law 640
Pinckerton v. L. Prickett v. Ba er. Bole aehaneauebenias tes tei 304
Pindar v. Wadsworth. . Priestley v. Fowler........0..........208. 310
Pine vy. Smith: ices cas. wanemesaatsigag aces Priestly v. Norther Ind. R. R. Co., 25, 69, 396
Pinhorn v. Tuckingtou Prince v. Moulton..........ecee eee e ee eee 186
Pippett v. Hearn .............0 . 0s. cece eee Pringle v. Spaulding............ c..eeee ee 53
Piper v. ere nry sfnusiotiGeitie'e  siekdusyaat Pringle v. Taylor .......... cess eee e eee e eee 69
Pirie v. steele ...... 02. cee ee eee 465] Pringle v. Wernham .................0005 57
Pitchard v. Long............. .0 eee scenes 549 | Pritchet v. Boevey...... 120, 592, 714
Pitcher v. Livingston. vs vessess e+e 287, 290] Probate Court vy. Slason........ecesceeeee 10
Pitcher v. Patrick. .............0...00. 08. 169) Proctor v. Newhall ............ .eeseeeeee 172
Pitcher v. Roberts ........000 6. else. 235 | Proctor v. Keith...............ceeee scenes 855
Pitt Wi Walden i..cciscs- casends dc pemncanaoes 11| Prosser v. Jones .............. 39, 89
Pittsburgh, se R. R. Co. v. Donabue.. 73| Protection Ins. Co. Vv. Hall.............. 452,
Pixlor v. Nichols... cccwcsessses souesava ve 305 | Proudlove v. Twemlow................+4. 534
Planchév. Colburn....... 06.2... ceeeeee 304| Pryce v. Belcher .... .......--26052 ee eee
Players Warihsesc veosereees aaa aase 726 | Pugh v. McCarty ........ 0... ecee cece sence

er v. United Kingdom - Electric
Obs OO cass. Saticrinssstaay Retedeibre seit yeusiail cainjs 6
Planck v. Anderson

Playdell v. Earl of Dorchester
Plevin v. Henshall
Plomer v.
Plumer V. BristO sca. sec sense ecclesia ewes
Plumer v. Harper
Plumer v. Whitely .

 

 
 
 
  

 
  
  
   
  

Pujolas v. Holland..

3| Pulliam v. Owen..........
j| Pulliam v. Pencenneau.

Pullen v. Chase ......
Puller v. Staniforth.
Purcell v. Archer........
Purcell v. PloNam ar ais
Purdy v. Carpenter ..
Purdy v. Philips ..

  
 
  
 

 

Plummer v. Gheen.. Purple v. Norton......-------- + 148, 150, 152
Plunkett v. Cobbett .. ..............2 0005 617 | Putnam v. Mercantile Ins. Co....... ... 446
Poingdestre v. Royal Exchange Assur- Pym v.G. N. Ry. Co eaten (idiyt nciare senate 678
ance Co

Polk v. Dal Quackenbush v. Leonard an phates 222
Pollard v. 350 | Quarles v. George «. 249
Pollen v. ica Bc ycge ess 254 | Quin v. King.. 337, 338
Pollock v. Huddicston . 115] Quin v. Moore. - 7, 10
Pollock y. Pollock.. . 359

Pomeroy v. Ainswort - 219| R— v. W— . 155

 
 
 
 
 
 
  
 

Pomeroy v. Go uy
Pond v. Merrifield .

 
 

 

  

   
 
 
  
  
  

Rabone v. Willia
Ragsdale v. oe

 

Pontifex _v. aes 8| Raikes v. To 418
Pope v. Welsh.... 155 | R. BR. Co. 18
Poppenheim v. 651 | R. R. Co 63
Pordage v. Cole.. . 818) R. R. Co. v. Boteler ..... ......-.-..2--05 109
Porter v. Bradley... 295 | R. BR. Co. v. Collins....... ..........2500 109
Porter v. Botkins.... .... 22.2165 cseeeeee 617 | R. R. Co. v. Elliott.............-65 66 eee 109
Porter Vi: Grey ste0 sxsei es Kee seas sone vee 529) R. R. Co. v. Gladman..................68 102
Porter v. Harris .... 728) R. R. Co. v. Goddard ..... ...-. ..-...ee 108
Porter v. McCreedy.. , Stdestlvidie sins Cane 645) R. R. Co. v. Gregory...

Porter v. NekervisS......-..-.---0eseeeeees 169] R. R. Co. v. Haslan ..

Porter v. Patterson ..... 1... -....--.005 225 | R. R. Co. v. Howard ...

Porter v. Steamboat, New England ..... 29| BR. R. Co. v. Mahoney

Porter v. Vorley . . ...---2. ce eeeeeeeeee 697 | R. R. Co. v. Ormsby

Portman v. Middleton .........--..--.... 256 | R. R. Co. v. Pindar

Poter v. Woods............ 248, 250| R. R. Co. v. Snyder

Potter v. Chicago R. R.Co..... ..... «++. 75 |R. KR. Co. v. Spurck

Potter vy. Gardner 215 | R. R. Co. v inn .

Potter v. Hopkins. . 249 | Raines v. ear

Potter y. Merchants’ Bank.... ....... 481, 498 | Raisin v. Mitchell....................-- ia
Potter v. Metropolitan District Ry. Co... 672 | Rajah Lelanund Singh v. Maharajah
Potter v. Rankin ........... cee cece eens 459 uckmissur Singh ..............-00e sees 236
Potter v. Seale 84 | Ralli v. Jamson.........-. cee vege eee ee ee 460
Potter v. Thompson........ -....... Ramsden vy. Boston & A. R. R. Co....... 62
Poulton v. Lattimore. Rand v. White Mountain R. R. Co...... 239

  
 
 

Pounsett v. Fuller ....

 

  
  
 

Randall v. Everest

ow v. Davis.....- .. Randall v Holsenbake..
Powell v. Burroughs 200 | Randall v. Te weon iecsiyaslgeisst: Ma Senemaeese
Powell v. Graham...............sseeeeeeee Randall y. Raper .
Powell v. Gudgeon...... 0... sees cees eee Randell v. Mallett.
Powellv. Hodgett..............00008 Randell v. Trimen..
Powell v. Jessopp............-.- a Randen v. Burton..
fowell v. aoa Mima, ZEREEe 682 Baugery- Goodrich...

owell v. Salisbury ........... ‘ anger V y.
Powerv. Whitmore .... ....... Ransomv. N.Y & a R. R. Co
Powers v. Pressgroves ......... a Rapalje v. Norsworthy... .............6.5
Poynter v. Buckley..........26. ssseseseee 535 | Rapelys v Mackie v0... 0000s mesa xrewnae 30:
Prehn v. Royal Bank Raphael v. Bank of England..... ........ 137
Prescott, Ex parte... ......-... 2 | Rashdoll v. Ford.... axae 229
Prescott v. Trueman Rassell v. Pabyan 18

 

 
lx Taste or Cases.

 
 
    
  
 
 
 
 
  
  
   
  
   
  
   
  
  
  
  
   
   
 
   
  
  
  
 
 
  
 
 
  

 

 

  

 

 

  

rao) | Rhodes v. Rhod a)
Rati’, ROYHCAS <5 cocassia crrenenrvene 220 0008 V. Rhodes «ci scccdiis cs veewemne de
Ravenga v. Mackintosh............ ..» 621| Rickard v. Kohl.......-..00-00. 0 eee 171
Raver v. Webster ........ +++: . 583 | Ricketson v. Richardson .... ... ........ 00
Rawley v. Rawley.. ..........- . 174 | Rice v. Baxendale..
Rawlings v. Morgan............++- 367 | Rice v. Hallenbeck.
Rawlinson v. Clarke ............ .- . 211 | Rice v. Nickerson. 81
Rawls v. American, etc., Ins. Co. . 440] Richard v. Booth . 692
Rawson v. Samuel ............+++ . 185 | Richards v. Barton. . 276
Ray v. Ayres ............--2 0+ : Richards v. Edick... - 320
Ray v. Law . Richards v. Richards . 843
Ray v. Lister.. Richards v. Rose. . . 145
Rayburn v. Day..... 225 | Richardson v. Chase - 275
Raymond v. Fitch . 73 | Richardson v Dorr . 295
Raymond v. Isham. 225 | Richardson v. Dunn 438
Raymond v. Williams 751 | Richardson v. Fouts.
Rayne v. Taylor.. 648 | Richardson v. Mellish
Read v. ae a iar 9 Richardson v. Murray .
Read v. E. Ry. Co Richardson vy. Northrup
Read v. Rone waa els i Richardson v. Nourse..
Reading v. Donovan Richardson vy. Roberts
Reason v. Wirdman Richardson vy. Robertson
Reasnoner v.Brown Richardson v. Virtue.....
Rector v. Mark..... Richardson yv. Williamson
Reddie v. Scoolt .............-+ Richbell v. Alexander ...........-.--.. .- 69!
Redfield v. Haight... ......2.csssccceeeee Richmond v. Sacramento R. R. Co... 107, 109
Redfield v. Holland Hurchase Tne Oo. : Richmondville Seminary, etc., v. Ham-
Redshaw v. Broo. esigaeewte ret ilton Ins. Co..........-.02-5 + 446
Re Duckworth .... ....-- ais Ricker v. Freeman.............-+ - 548
Reece v. Lee ...... cece ceeeeeeaee Ricketson v. Richardson ..
Reed v. Davis... .---..:..ceeceeee Ricketts v. Lostetter
Reed vy. Harper ............-..-+205- Ricketts v. Weaver .............02-eee eee
Reed v. Hamilton .............. 0 | Rickey v. Tenbroeck ..
Reed v. Taylor...............-.- Si5e Ricks v. Yates .........
Reeder v. Purdy........... -...-2.-205 Riddle v. Sutton... . <
Rees v. Lines ....... .--..-eeeeee Rider v. Kelley.... ....... 202s seeseee eee
Rees v. Morgan.............-20.-005 Ridgeway v. Hungerford Market Co....
Rees v. Watts....... 0 .-..-. 005 Ridgeway v. Stafford.................-.... 535
Reese v. McQuilkin.... .... nis Riding v. Smith 5
Reeve v. Bird.............-...2005 Ridley v. Perry 64:
Reg. v. cambridge Gaslight Co.. . Ried v. Hensselusr Glass Fectory dais, 2 215
Reg. Vi Ballescc ces. ssenscivesice oe 2) Rigby v. Hewitt ................ 9, 97, 102, 105
Reg. v. Haslem................. 856 | Rigden v. Wolcott................ 149, 10, 617
Ree Vs LOC cscs: ban ccaenew es . 858 | Rigge v. Burbridge....... : : . 266
Reg. v. Newman.... ........ 649 | Riley v. Jones............ ..0. eee cee e ee eee 212
Reg. v. Welch.... .. sa ... . 816] Riney v. Vallandingham..... vas BF
Regnier v. Cabot.... ......... : 50, 650 | Ringold v. Bacon..............-..22-.-200. 146
Reid v. Duncan ..........-....0e eee e eee 225 | Ripley v. Chipman.................... 804, 308
Reid v. Fairbanks .. 501} Ripley v. Davis....... 0.0... ce cee eee eee 492
Reid v. Hoskins..............-. 2... ... 244] Ripley v. Scaife........ .......... .-. 386
Reid v. Rensselaer Glass Factory 228 | Ritchbourgy. Ritchbourg.... ... . 172
Reilly v. Jones................506- 212 | Ritchie v. Moore ................. -- 169
Reimer v. Ringrose ..... .. . 457 | Ritchie v. Summers ....... a8 «+ 270
Reindel v. Schell ........... 209 | Ritchey v. Davis ........ 20.22.2022 a 2
Rendall v. Hayward .......... . 44 | Riversv. Gregg....-........ 20.2. 6
Respass v. Parmer............. -.- 751] Rives v. Dudley ..
Revis v. Smith.......... 614 | Roach v. Jelks ....... .... 5 22
Rex v. Cross...........-+- 8] Roach v.Thompson.... ... .......-....5 124
Rex v. Moore.. 639 | Robert mary ASO.... 2.0. on ain, ET, 80)
Rex v. Ridley’ .. 310 | Roberts v. Boyles.............--....55 566, 573
Reynolds v serine: asad. BEE ALOE 168 | Roberts v. Havelasie. Laraisie eisai eee es 300
Reynolds v. Bridge.. 211 | Roberts v. Heim ........:........... 0.0 e ee 122
R. v. ams...... 357 | Roberts v. Mason............... 0c ccc eens 59
R. v. Bedworth... Roberts v. Miller... 5 absrieote-aicneteicianen ac 648
R. v. Bradford. Hoberte Ve MUI. ccs cevdwnaas eas wus 00 ans 750
R. v. Gibbons. Roberts v. Roberts ...... 628, 633, 636, 639, 751
R. v. Grant. Roberts ¥, BWILE ose ensvaescanes$s ve - 1
R. v. Guest Roberts v. Washburn ........ 3 \hcatesime re 8
R. v. Hogg Robertaon. ¥, Bwer va iasciisunn bevinnaicnncse 467
R. v. Ine aio Robertson v. Lemon..... ..........5 cases 292
R. v. Kettleworth . Robertson v. Parks... ... Sieleiste sitet ssinasisrese 169
R. v. Lower Mitton Robertson v. Spring .............006 veces 572
R. v. Miller........ Robertson v_ Wylde ................00 000s 625
R. v. St. Nicholas Robinett v. Ruby ... ............. 00000008 651
R. v. Sheriff of Es Robbins v. Fletcher .................0 000 + 620
R. v. Smith......... Robbins v. Hudson River R. R. Co ...... 748
R. v. Virrier Robbins v. Packard 490
R. v. Wells.... Robinson v. Barrow
Reynolds v. Cox.. Robinson v. Bland . ,
Reynolds v. Kennedy Robinson v. Cathcart.............. 0.0... 205.
Reynolds v. Walker .. Robinson v. Cone.. - 102, 108
Rhodes y. Lord Selsey... Robinson v. Harman. . 158, 278
Rhodes v. Forwood ...... i .é Robinson v. Knights. -» 382, 387
Rhodes V.. Lames... cece cnsevssweeed ays caver 165 | Robinson v. Learoyd................. 356, 361

 

    
   
  
  
 
    
  
   
  

 

 
 
  
     
  
 

  
   
  

 

 

  
 
 
 

 
Tasie or Caszs. lxi

. PAGe. Paar.
Robinson v. L’Engle...... wire sees 167, 168} Russell v. Macquister 621
Robinson v. L. & 8. W. ‘ ans +» +» 412] Russell v. Palmer ... . 61

   
    
 
  
 
 
  
  
  
 
 
 
 
 
     
 
 
 
 

 
 
  
 
 
 
 

Robinson v. May

: 621 | Russell v. Redding .
Robinscn v. Price ...

- 408) Russell v. Sa da Bandeir

Robinson v. Reynolds. ............... 05 347| Rutan v. Hinchman . - 65
Robinson v. Robinson .. . 858, 690] Rutherford v. Evans.. - 630
Robinson v. Vaughton . -.- 525] Ryan v. Baldrick....... 0.00.02. cece eee ee 217
Robson y. Codfrey........ « 299) Byan ¥. Barger .iccc cies siecaawawrvan dee 174
Rochdale Canal Co. v. King..... . 556] Ryan v. Massy...........6. ccc ee cee e eee 338
Rochdale Canal Co. v. Radcliffe . 556] Ryan v. N y Cent. Ry. Co.... ......... 597

Rockwell v. Brown.............4 . 640| Ryburnv. Pryor ....................00e ee 500
Roden y. Eyton 535 | Ryerson v. Morris, etc., Banking Co..... 743
Rodger v. Comtvir D’Es Comte de Paris, 236

 

 

    
   
    
 
 
    
  
  
   
  
 
   
    
 

Rodgers Vs LAW. siacee cle Scawectertecs: “ateyanine - 428) Sabin v. Long ........ eee cece cence ee aoe G27
Rodgers v. Nowill.s cos oc. .4 cosncievess vase 711 | Sadlers’ Co. v. Babcock..... ..........4. 443,
Rodgers v. Parker... . 580, 534] Sainter v. yoneneee ister ieie ASG? ake 205, 212
Rodney v. Strode vee. 727] Saladin v. Mitchell . ................ 240, 254
Rodrizues v. Melhuish.. .-.. 404| Salem Bank v. Glouchester Bank fags eesti
Rodriguez v. Tadmire..... z 588 | Sample v. Wynn ave cepa vatevaaysiecs ov apbeauaies Basvcteiere! 155
Roethke v. Brewing Co . -.. 168] Sampson v. Smith ............... cess eee GL
Roffey v. Greenwell .... 843 | Samuel v. Bond .........2.. ccc cece eee ees 150
Rogers v. Bemus...... ‘ Samuel v. Payne .. sistieainnael 588
Rogers v. Bomnpneey Sanborn v. Steele... ....... s.ssssees sce 218
Rogers v. Moore . A ysis Sandback v. Thomas..............+. 120, 562
Rogers v. Parham .........+.-- Sandiford v. Bean ............ cee ceee eee 737
Rogers y. Price... ........ ...-- cae Sanders v. Anderson savas ve - 58
Rogers v. Smith-..... - 80] Sanders v. Johnson .

Rogers v. Spence.... Sanders v. Kentish.... eases

Rogers v. Stephens...... = Sanders v. Stuart.... . -» 40, 414
Rogerson vy. Ladbroke.. 7 3 Sanders V. Vance ......... ee cee eee eee 492
Rohr v. Kindt............... 55] Sands v. Taylor ............ cece e seen eens 270
Rohrback vy. tna Ins. Co 452, Sanford v. Alcock. , ao» 185, 736
Robrback v. Germania F. Ins. Co... 452, 458 | Sanford v. Clarke ............ cece cece eens 740
Rolch v. Hawes.............-.655 — Sanford v. Clark ......... ccc eee cee cee ee "37

Roles v. Roswell ...... 4 Sanford v. Gaddis .............-0.. esse eee 642
Rolin v. Stewart . Sanford v. Porter. 736
v. moors een

 

Rolph v. Crouch .... Sangamon & Morgan BR. RB. Co.
Romayne v. pues Sanguinetti v. Pacific Steam Nav. Co.
Romig v. Rom Sankey Brook coat Co. v. veel
Ronneberg v. Falkland Island C Sanquer v. L. & 8. W. Ry.

- 152 | Sappington v. Watson.
0, 639 | Sapsford v. Fletcher
. 411] Sarpy v. New Orlean
. oo Satterlee v. Groat..

Root vy. King
Root v. Lowndes
Rooth v. N. E. Ry. C
Roper v. Johnson

 

     
   
 

Rose v. Bowler.. 84 | Satterwhite v. Carso

Rose v. 22 | Satterwhite v. McKie

Rose v. 713 | Saunders v. Brosins.

Rose v. - 192 | Saunders v. Mills..

Rose v. ..558 | Savage v. Corn Exchange Ins. Co.

Rose v. . 192 | Savage v. Howard Ins. Co

Rose v. ... 116] Savil v. Kirby.... .........5+ 80,
Rose v. Wallace.... 273 | Savil v. Roberts........... .....6+
Rosewell v. Prior. ... . 141 | Sawyer v. Hifert.. ... 14

Rosiers vy. Sawkins. . 81} Sawyer v. Sauer.......
Ross v. Adcock.. . 683 | Sayles v. Briggs... ....
Ross v. Innis ..... .-- 150 | Sayles v. Wooden..
Ross v. Knight . ... 169 | Sayre v. Sayre bhcidaaccieoosiers
Ross v. Pearson .. . 169| Scallen v. Longfellow..

Ross v. Pender... 821 | Scanlon v. Cowley... ...

 

    

 

Ross v. Thwaite.... abe eG emaaietowersioiey oe 472 | Schaeffer, In re Bxt, Of soeseise
Rossetto v. Gurney ro ae Schermerhorn vy. Anderson .........-.-..
Rounds vy. Baxter.... ......... cee eee eee 805 | Schelter v. York.........+00-. sees eee ee 592
Roux v. Salvador ... ... ... 456, 460, 464 | Schenck v. Schenck.... .....--++ eeseeeee 630
Rowan y. Sharp’s R. Co..........-.eeee ee 168 | Scherpf v. Szadeczky... ... ----+sseeeees 750
Rowe v_ Heath..............0.cce sees 122, 292 | Schierhold v. North Beach R. R. Co .... 102
Rowcliffe v. Murray ... ......-.--..-20005 590 | Schindel v. Schindel........ .....-+--se0e 516
Rowlands v. Samuél..........-...... ... 185] Schlencker vy. Risley............ ...s+ee0e 750
Rowley v. Adams......-........eeeeeeeeee 689 | Schley v. Lyon ..........-.eseeseeeeeee eee 489
Rowley v. Gibbs . . ....-.-- ese e eee ee ene 533 | Schloss y. Heriot.........-.- a Sicis faedvate rants 191
Rowley v. London & N. W. Ry. Co.. 596, 676 | Schmidt*y. Limehouse..... Aaggeecme dt C1:
Rowntree vy. Jacob......... 2666 cece eee e ee 293 | Schnerr v. Lemp...... sees eee 248, 805
Rubery v. Stevens ............ 0.2 ceee cee Schnette v. Sutter...........6. cee eee eee 54
Rucker vy. Athens Mfg. Co Schofleld v. Corbett............0:0. ceeeee 179
Rtidge V. Birches visa casasess ccodesnevons Schofield v. Ferrers... .....---.s2.cseeees 584
Rudolphy v. Fuchs.............--. Schoonover v. Christy ......-..-..60. sees 306
Rumberlow y. Whalley ...... ... : Schoonover V. Rowe..........seseeev renee 640
Rundell vy. Butler. .....-.-:.05 seeseeeee 640 | Schrimper v. Heilman. «++ 620, 630
Rundle v. Little ......... 02. cece cent eens Schubart v. Harteau ............ cee eee ee 167
Ruse v. Mutual Ins. Co ........,...-+4+ .. 440 | Schweizer v. Weiber. iadintceteisionre. LOS
Russ v. War Eagle ........... 51 | Scofield v. Day........-.20.eeeereeeee pain see 219
Russel v. Ball ....... cen X : Scofield 7. Rigsler ss. <ccniereewinie orariaca 218
Russell vy. Bell .....-. Scottish Marine’ Assurance Co. v. Turner, 458
siaie aja Ble ieroucereuels Wao 170! Scott Vv. Bevan.... .....ceeeeeceee cece eens 341

Russell v. Lithgow.....
lxii

Scott v. Boston, etc., 5S. S. Co... ...----+
Scott v. Fletcher............
Scott v. Henly.......
Scott v. McKinnish...
Scott v. Mortsinger...
Scott v. Peebles
Scott v. Rayment.... 2.2.2.0... cee e see ee 59
Scott v. Rivers..........-..-0- cee eee weir LE
Scott v. Shepherd
Scott v. Simpson...............- eee creer ee
Scott v. Stale:
Scott v. Waithman........... 0 ..-seee eee ee
Scougull v. Campbell..........-..+5 ceeeee 136
Seager v. Sligerland. ....
Seale v. Hunter...............0..es eee
Seaman v. Netherclift A
: earle v. Scovell.............--cceeeeeeeeee
iS

   

 
  

ears vy. Lyons ...
eat v. Morland............ a nemnneitte earls 7
Second Nat. Bank v. Hemingway.,......
Sedgwicke v. Richardson
Sedgworth v. Overend..................505
Seely V,. BAK. oi5.c ssc eindie: seisesisieeicgt sales ne
Segar Vv. ALKINSON .... 104 creeunesenee ne
Seger v. Barkhamsted...............
Seidensparger v. Spear..... ........
Self:vi GardM er snconmorsaecsaaserarccicins os
Selfridge v. Lithgow............ .........
Selkirk v. Cobb
Sellars v. Kinder........... .ceecsee sees
Seller v. Work
Semenza v. Brinsley.......
Senard v. Willcock
Sessions v. Richmond ..
Setley v. Wanless ..............600eee eee 738
Severance v. Hilton...............

Seward v. Beach
Sewhanberg v. Buchanan .
Sexton v. Brock ... .
Seymour v. Merrills....
Shadwell v. Hutchinso
Shafer v. v. Loucks .
Shannon v. Comstoo!
Shantly v. Miller..
Sharp v. Gladston
Sharp v. Powell..
Sharp v. Johnsto
Shattuck v. Myers .
Shaulv. Brown...
Shaw v. Arden...

 

 

 

 

  
 
 
 
 
 
 
 
 
  

 

 

  
      
  
   
  
  

Shaw v. Boston, etc., R. R. Corp 154
Shaw v. Etheridge .... ..... .... 540
Shawv. Gookin........... ...2..065 172
Shaw v. Holland.... ....... eee cece eee ee 252
SHAW Raye ewes icieiaccenns vee doemened conduc 366
Shaw v. Marg. Worcester... ........ «, 339
Shaw v. Nudd. ..... ee re a 16, 248
Shaw V. PictoDs. sic sccsecscaaaccccvenes vie 228
Shaw v. Bweeney ...--cceece. teaeesnuacoy 646
Shaw v. Turnpike C0... :.00r0se0ers ice 305
Shaw v. Wilkins........ 58, 275
Shawhan v. Van Nest . eae 239
Sheahan v. Collins..... 648

Sheape v. Culpeper...
Sheehan v. Collins...
Bheehee vi Reslet nc... ne cow ecncnes ve ne
Sheels v. Davies..
Sheen v. Rickie.....
Sheldon v. Carpenter.
Sheldonv. Davey....... .....2-ceceeeenees
Shelly v. Vanarsdoll .... ccc csss ces amon
Shelton v. Simmons....... ........0.005

Shephard v. Brenton.........-....0..00005
Shephard v. Hollis... .........ccccceeeeeee
Shephard v. Merrill....
Shephard v. Ryers

Shepherd y. Charter ....................4.

Shepherd v. Hampton.................... 16
Shepherd v. Johnson...............0.... » 257
Shepherd ¥) Kal... srecceccsusssencae - 268
Shepherd v. Turner....... 0c... cece eee eee 1%
Sheridan v, Furber ................c00005 592
Sheriff v. James....... ........00. eee 536

3 | Slack v. Littlefield .

68 | Sleat v. Fogg

 

Taste or Caszs.

PAGE.

Sherman v. Champlain Trans. Co., 804, 317

818, 322, 325

Shermanv. Fall R. I. Works....... ....-. 147
Sherman vy. Wells.... ..........-5 -.+-s

  
 
  
 
  
 
 
 
 
  
 
 
 
 
 
  
 
 
 
  
    
   
  
 
 
 
 
  
 
  
 
  
  
 
  
 
 
 
 
 
 
 
  
 
  
 

Sherrod v. Langdon................
Sherwood v. Titman. a
Shewel v.Givan. ..
Shiell v. McNitt.......
Shileock v. Passman
Shilling v. Carson ....
Shipley v. Caples
Shipley v. Hammond
Shipman v. Burrows...
Shipman v. Hartwell.
Shipman v. Miller.....
Shipman v. Thompson.
Shirley v. Jacobs.....
Shirley v. Keathy..
Shobe vy. Carr........
Shockey v. Glassford.....
Shoemaker v. Livezeley.
Short v. Coffin....... ....
Short v. Kalloway..
Short v. McCarthy ...
Short v. Skipwith... ....
Shortridge v. Lamplugh..............
Shotwell v. JeffersonIns. Co..... ........ 452

 

Shoulty v. Miller................ cee. .200. 150
Shrevev. Brereton... --208, 248
Shroyer v. Miller............ .2....-02200- 155
Shufflebottom v. Allday -570, 580
Sibley v. Hulbert -............---.---.225-- 33
Sibley v. Marsh ........ 149, 644
Sicklemore v. Thistleton.......... ....... 721
Sickles V:\Fort, cvs. cise cciswwscasecdawe 171
Siggers v. Lewis... ... 344
Sikes y. Wild... .. 53, 276
Sill v. Rood -.. 270
Simmonsv. Williams ..................0.- 186
Simons v. G. W. Ry.Co..... ....... - 410
Simons v. Patchett . 436
Simousv. Walter. « 228
Simpson v. Clarke . 347
Simpson v. Feltz... . 500
Simpson v. Hartopp - 5388
Simpson v. Lamb..... ie . 706
Simpson v. L. & N. W. RB: 400

Simpson v. McMillion
Simpson v. Pitman ..
Simpson v. Robinso:
Simpson v. Savage.
Simpson v. Scottish
Sims v. McLendon
Sinclair v. Bowles
Sinclair v. Eldred .....
Singer v. Farnsworth
Single v. Schneider.................. 2...
Singleton v. BE. C. Ry. Co....... sae
Singleton v. Williamson.... ......
Sippora v. Basset .............. ..cc eee
Sisson y. Cleveland, etc., R. R. Co., 25, 26,
Skinner vy. Grant ........ , 643, 648, 651,
Skinner v. L. &N. W. Ry. Co............ 5
Skinner v. Powers ...........

Skull v. Glenister......

 

Slack v. Lowell...
Slater v. Rink....
Slater v. Sherman...
Sleap v. Newman.
Sleeper v. Sandown..
Sleuter v. Walbaum..
Slipper v. Stidstone....
Slowman v. Walter.... .... ..
Smallpiece vy Bockingham..

Smart v. Sandars...........
Sineed v. Foord.........
Smethurst v. Woolston.
Smith vy. Allison ... ....
Smith v. Ashforth.
Smith v. Baker.....
Smith v. Berry ..
Tasie or Caszs.

   
  
  
  
   
 
 
 
  
  
 
  
   
 

 

 

 

 

 

 

  
 
  
  
  
 
  
   
  
  
   
    
  
  
 
 
 
 
 
 
 

 

 

 

     
 
 
 
  

 

 
 
 
 
 
 
 
  
 
 
 
  
 
 
  
 
 
 

 

 

 

 

 
 
  
  
  
   
 
   
 
 
   
   
  
   
 
  
  

 
   
 
 
 

PAGE.

Smith v. Bond... . 339 | Sparhawk v. Buel 21

Smith v. Broomhe: ... 383 | Spark v. Heslop.. 4

Smith v. Brown... 406, 679 | Sparks v. Martind: 122, 420

Smith v. Buckecker ............ 2.2245 Sparks v. Messick.........0 6. sees ecco eens 270

Smith v. Compton 134, 289, 426 | Sparrow v. Paris 206, 212, 218

Smith v. Coudry ......-..... ec ee cece seeeee Spears v. Cross 568, 569

Smith v. Dickens Speck v. Phillip: , 593, 647

Smith v. Dobson Spedding v. New 415,

Smith v. Douglas: 866 | Speers v. Sterrett ,

Smith v. Downing. 606 | Spence v. Whittaker

Smith v. Gates ............... cee cee eee 587 | Spencer v. Anness.

Smith v. Green 82, 268, 273 | Spencer v. Goter

Smith v. Hayward 323, 328 | Spencer vy. Jacob.

Smith v. Hodson ...............e cee eee 192 | Spencer vy. Woodbrid,

Smith v. Holbrooke..................0055 525 | Sperry v. Wilcox .

Smith v. Hollister. ...................- 651 | Spiers v. Halsted 248

Smith v. Howell ..... 183, 143, 421, 424 | Spikes v. English. 61

Smith v. Humbert... .........-.. 00. 220 Spiller v. Westlake... .............48. - 349

Smith v. Humble .. 2 | Spivey v. Morris................c cee scene 510

Smith v. Jefts....... Spooner v. Brooklyn, etc., R. R. Co. ... 109

mith v. Kingsford ............... -..08- Spoor v. Green ....... cee. cece eee cece eee 138
Mith Vv. KATDY.. cesses. ess osewseses es voa Spottswood vy. Barrow.

Smith v. Lovelace .............-...2ee anes 155 | Spring v. Chase .......... ccseeee eee

Smith v. McCall.... 2.0.0 2. cece eee eee eee 20 | Spring v. Haskell... at

Smitb v. MacDonald 570, 587 | Springer v. Berry ............. ...668 28.

Smith v. McGuire.... g 87, 388 | Springdale, etc., Ass’n v. Smith , 2.

Smith v. Malings .. a4 iatecsiedeipccicinns - 293 | Springfield F. & M. Ins. Co. v. Allen..... 452

Smith v. Masten... ; y 165 | Springstein vy. Field .... ........ 49, 155, 643

Smith v. Milburn ................ ceeeee 660 | Sproat v. Cutler. .i..0.0 cccneeue oven ibettiens, 226

Smith v. New Castle................. eee 807 | Spruil v. Cooper ....... 642, 643

Smith v. N. H., etc., R. R. Co * Squire v. W. U. Tel. Co...............24.5 40
Vi PO at: wis secre iaecgeae giausemess os 363, 366 | Staats v. Ten Eyck’s................0000- 289
v. Price ... Sera sae 542 | St. Aubyn v. St. AUbYM. co. ceaecevenecevae 858
v.R.R.Co.... Bis - eiatatatbie 60 | St. Martin v. Desnoyer........... -..e sees 71
v. Richardson .. ......0...0.seeeee 152 | St. Paul v. Kuby... 2.2... ccc cece cece renee 51
V. Robinso0Desss cece cseceess veecess 220 | St. Peter’s Church v. Beach. 61, 597
v. Ryan ....... whlviere. rank aniei sacra 211 | Stadhard v. Lee............. ceee eee cee ee 299
v. St. Lawrence........-ee cece eee 95 | Stafford v. Ingersol . ..... ......22eee eee 98
v. Scott ........ <i sania SAD 5 ROMERO 644 | Stage v. U.S. Ins. Co......... 020k cee eee 457
v. Shackleford ......... 6. ....-6- 572 | Stammers v. Elliott ..............2. .00 » 185
Vie SSA UMIWAY. sceceseisiereccesises, sisiojesd sresiqcicin 150 | Standeven vy. Murgatroyd................. 181
v. Smith...... 83, 648 | Stancliff v. Palmeter...... 572, 573, 584
Vi Si B. Ry. COscscacecncneecersewene 587 | Staniforth v. Lyall .................2.008- 392
v. Sprague 122, 292 | Stanley v. Towgood .........--.......5-. 368
v. Strong maha Stanley v. Webb ...............ce seen ee eee 643
Vie DAylODsiccecaniccaseasesnewsas snes 7 | Stannard vy. Ullithorne 611

Smith v. Tett ....... 478, 555 | Stanton v. Hart . ...........--.02e eee eee

Smith v. Thackerah........ ... 6, 13] Stanton v. Styles.

Smith v. Thomas..... ........-..-..5 109, 640 Btaep v. Partlow

Smith v. Thompson..... 307, 825, 326, 327 | Stark v. Parker...

Smith v. Wainwright ...................+ 202 | Stark v. Porter ..

Smith v. Walker..... 569 | Startup v. Cortazzi.

Smith v. Woodfine................ cece eee 654 | State v. Beard

Smith v. Wright ... ... 53; | State v. Burnham

Smith v. Wunderlich . 61, 64] State v. Butman

Smith v. Wyman... ... . 618 | State v. Ford

Smith v. Youmans .... 620 | State v. Gues

Smithey v. Edmondson.. . 338 | State v. Kirby

Sneesby v. L. & Y. Ry. Co 2, 95| State v. Mayber:

Snell v. Cottingham . 19 | State v. Norton

Snell v. Dell. Ins. Co . 444] State v. Rowley

Snelling v. Darrell "i State v. Shean

Snow v. Conant . State v. Smith .

Snow v. Grace .. . 58] State v. Stanford

Snow v. Witcher ... 643 | State v. Steen A

Snyder v. Andrew: . 151, 618 | State v. Sutherland... .... ............- 659

Sollers v. Lawrence. .-. 683 | State Bank v. Armstrong ... ..........5. 169

Solly v. Hinde ..... 3847 | Staynrode v. Locock........ ...--+2seeees 721

BOLMS V, Leia Sic ojo: ss)cpese ape drarsidcsminines tieisind Hacked 709 | Steamboat Co. v. Wilkins.. ............. 304

Solomon vy. Turner........ ..---25 eee eees 349 | Steam Nav. Co. v. British & Colonial

Sonneborn v. Bernstein. 21, 629 Steam Nav. Co ........ wee cseeceee ae oe 405

Southall v. Rigg .........-.. see. ees eee . 347 | Stearine Co. v. Heintzmann..... .... .. . 701

Southampton Steam Colliery Co. v. Clark, 389 | Stearley’s Appeal ............--...-+ eee 221

Southard vy. Smyth 226 | Stearns v. Barrett.............00e cece eee 203

Southern v. How. .... 707 | Stearns v. Brown ........ 6.2 cece e eee eae ee 220

Southern R. R. Co. v. Kindrick. 10 | Stearns v. Cox..... . 618, 620

Southernwood v. Ramsden. ............ 661 | Steel v. Williams........... ccs eeeeeeee ee 573

S. W. Stage Co. v. Peck...... ..... .--20e 253 | Steer v. Crowley .. -. 9, 280

Southwick v. Stevens..........-..-.2.006. 751 | Stees v. Kemble.... . 151, 650

Soward y. Leggatt ........--:0eeeeeeee eens 66 | Stein v. Yglesias Vestewioemes, “aceamarasen 348

Sowell v. Champion 525, 757 | Stephens, Ex parte.............+-..06 185, 190

Spain v. How........2.2.ccceceeeeseeneenes 577 | Stephens v. Beard ....... 0.2.2... ..0. eee 308

Spann v. Glass .......-...e eee eee e eee eeee 149 | Stephens V. Felt... .......... ce ceee ce eeeeee 152
lxiv

  
 
 
  
 
 
 
  
 
 

Stephens v. Wilkinson
Stephenson y. Axson
Sterrett v. Kaster
Sterling v. Peet.
Sterry v. Forema
Stetson v. Faxon
Stevens v. Able..
Stevens v. Lyford es
Stevenson v. Belkna:
Stevenson v. Lambar
Stevenson v. Montreal Telegraph Co....
Stevenson y. Newnham 532,
Steward v. Gromett dace
Stewart v. Coulter
Stewart v. Beaumont .
Stewart v. Canty
Stewart v. Greenook Ins. Co..
Stewart v. Rogerson
Stewart v. Steele... ...
Stewart v. Thompson. ..
Stewart v. Walker 32
Stewart v. West India & Pacific Steam-
ship Co 4

Stickney v. Allen
Stiles v. Geescy
Stiles v. Tilford
Still v. Hall..... ...... sc cece eee ee
Stille v. Jenkins................+-
Stilwell v. Barnett
Stilwell v. Barter
Stimpson v. Green
Stimpson v. Railroads
Stimson v. Farnham... .....:..--...66
Stimson v. Hall
Stinman v. McWilliams......... ......... 644
Stirling v. Garrittee y

  
 
 

 

 

   
  
 
  
  
   
 

TasLe oF CasEs.

 

PAGE.
Sugg v. BloW........ eseeeee ieee aiksinhienas 318
Sully v. Duranty.... .......065  ceeeeeeees 110
Sun Fire Office v. went ciaragec ina diosaratacsalsretoe 453
Sunderland Parish v. Sunderland Union, 356
Survey v. Wells.... ....-0-:sees es ceeeeres 69
Suse v. Pompe ............ sa os» BOD
Sussex, etc., Ins. Co. v. Woodruff ........ 446
Sutton v. GW. Ry. Co 882
Sutton v. Manderville........ ...... .----
Suydam. V. Jenkins. ... ccc cc seeeececene tes
Swafford v. Whipple...........-..-. «++.
Swaine v. G. N. Ry. Co
Swan vy. Saddlemire ......-.....-----
Swansea Shipping ee. v. Duncan .. 128
Swanzey v. Moore. 806

 
 
 
 
 
 
 

Swatman v. Ambler. .
Swartzell v. Dey.... -..
Sweany v. Hunter............. .e.-e) tees 2
Sweem v. Steele......... .2. cece eee eee
Sweetland v. Smith
Swett v. Dodge.........
Swett v. Patrick
Swift v. Dickerman
Swinfen v. Bacon.......... 2.2 ....e-ee eee 3
Swinnerton v. Marquis of Sretonte
Swire v. Leach.......... «

Sykes v. Dunbar... ..scececeeee oe
Symmons v. Blake...
Symonds v. Carter
Symonds v. Page

 

Taber v. Hutson ...
Talbert y. Stone
Talcott v. Marston..
Talmage v. Baker.

Tancred v. Allgood ..

 

   
  
   
  

Stirling v. Maitland.. Tancred v. Ley. and.. 532
Stocken’s Case........00- ceeeeeesceaesees Tanner v. Woolmer.........---.--.++-+- . AT
Stockport Water Works Co. Vv. Potter.. &@| Tapley v. Labeaum..............6.-2-- 66+ 286
Stockwell v. Phelps.... ....4.--.--0s-ee ee » 54g Taplin v. Florence .........- 20.2... ee eee 706
Stoddard :¥. Mimic. sae ccecuendcied S245 05 250 | Tapling v. Jones..... <0 1d
Stoddard v. Waters... ......-......-.eeeeee 131 | Tappan v. Powers...............- 559, 561
Stoessiger v. S. HE. Ry. Co..............28 403 | Tarbell v. Cent , etc., R. R. Co........... 29
Stokely v. Thompson............ ....+- a 222 | Tarpley v. Blabey jai /ohdhiiepe leis ulssath seins sRESENS SE 648
Stokes v. Cooper.... 0... -e.eseee rece eres 853 | Tatum v. Manning..............0. cece eee 488
Stone v. Bucker............ 2... eeeeeee nee 172 | Taunton Manuf. cs. v. Smith. ...,.. 1
Stonev. Crocker.... 9 ......2 ee tere ee 571] Taylor v. Bennett ..........-.0.- eee e eee 557
Stone v. Dickinson ..................2266. 583 | Taylor v. Church .............-.- 616
BtoneV DOCK Osisccnaiy saancsedean carceaas 222 | Taylor v. Collier ..........-...+ 396
Stonev. Stevens... . 572, 574] Taylor v. Giger 51
Stoney. Stone... . 666, 670 | Taylor v. Godfrey 571
Stone v. Varney.. 155, 618 | Taylor v. Goul WE
Stoner v. Evans.. ... 222| Taylor v. Helps..... 57
Stoneseifer v. Sheble. . 750 | Taylor v. Hennike:

Storey v. ewan . 628 | Taylor v. Higgins

Stott v. Ryan .. . (50) Taylor v. Holt .

Stoudenmeir v. 217 | Taylor v. Ketchem.

Stout v. Jackson.... .....-.. 0... esse eee ee 292 | Taylor v. Kneeland

Stow v. Converse Taylor v. Maguire .

Stowe Vi Miles sciciewasssawiasaraaen vas 8| Taylor v. Mills ...

Stowell v. Lincol , Jl} Laylorv. Neri .

Stracey'Vi. DOO since ienenatte: | iene sare oie 177 | Taylor v. Paters

Strader v. Snyaer. 629, 650 | Taylor v. Parry.

Stratton v. Matthews .........0 secsceeee 124| Taylor v. R. Ry

 
  

Streeper vy. Williams.
Street v. Blay

Street v. Chapman......... ..-......5 Eo

Strong Ve Oa 66 ccisiccesjs ss ogisitrsisinasieis cine sa ae ? 36

Strong v. Manuf. Ins. Co. ........... 446, 452
Strong ¥,, SEONG swicseiese searesieu: merisbiers. 6 489
Stroud vy. Dandridge unrole CapradietMiaceabaee 691
Struble v. Nodwift........-....... eens ee 60
Struthers vy. Brown ... 2... .. 00. wees eee 184

Strutt v. Farlar...
Stuart v. Binnse..

 

 
 
 
 

 

   
    
 

Taylor v. Read.
Taylor v. Robinsor
Taylor v. Sandiford ...
Taylor v. Taylor
Taylor v. Waters
Taylor v. Willans..
Taylor v. Young...
Taylor v. Zamria..,.
Tazewell v. Saunders ..
Teagarden v. Hetfleld..
Teft v. Windsor........

Stuart v. Isemonger. Rene rer. 404 | Tegetmeyer v. Lumley................-05-
Stuart'v:, Lovell. csnesecvses op vs tevavariecs 622 | Telfer v. North. R. KR. Co.

Stuble v. Puee.e, cscavosp aseias vsanrae 286 | Tellet v. Linfleld ......

Stubbs v. Parsons....0.0.00. 3862 | Tempest v. Kilner.....

Sturgess v. Bissell ..........c.ceeseeee enon 24 | Templer v. M’Lachlan .

Sturt v. Marquis of Blandford.. ........ - 666 | Tennant v. Gray ...... 340
Sturtevant v. Ford................0000 ee . 848 | Terre Haute, ete BR. Go. v. Vanatta.. 753
Suffolk Bank y. Worcester Bank . . 2291 Terry v. Hutchinson ............. 20.0... 65%
Tasxe or Cases. lxv

   
  
    
 
 
     
       

     

 
   
  
 
  
   
  
   
  
  
 

 

  
    
     
     
   
    
     
     
     
 
      

 

  

PAGE. PAGE.

Terwilliger v. Wands........ 627, 629, 638, 687-) Toms v. Wilson........ ...... .. . 508, 520
Tetley v. Wanless............... 831, 882, 284] Tone v. Brace................ cece cence ee ee 171
Thame v. Boast.... ++. 881, 383 | Tong v. Matthews...............c:eeee anes 292
Thayer v. Brooks..............c000 cee ceee 188} Toppan v. Jenness .......... 26. ccc eee econ 174
Thellusson v. Fletcher..................- . WIT | Torre v. Summers. ... ..cccccvceensneraeis 661
Thetford (Mayor of) v. Tyler....... ..... 855] Torrence v. Gibbins... .............0.e005
Theobald v. Railway Passengers Asso- Toussaint v. Martinnaut.................. 427

Clationw OG sadorcce vans ponsnsiins, Keetees 441 | 'lownsend v. Hughes.............:..eeceee 626
Thomas v. Clarke ... ..... ... 888, 887 | Tozer v. Hutchinson.................00008 312
Thomas v. De Grafferreid................ 572 | Trabue v. Mays sist ate A eeansiaianete (OLB
Thomas v. Fredericks ............--... 008 749 | Tracy v. Swartwout.... 0 ...... cee ee eee 593
Thomas v. Harris .................0006 cee 747 | Traders’ Ins. Co. v. Roberts.............. 452
Thomas v. Hopper. -.. 172, 178} Trammell v. Harrell......... oa - 169
Thomas v. Kenyon................0eeeeeee 109) Travis v. Barger..... 165, 752
Thomas v. Powell......... 02. sees eeee eens 503] Traub v, Milliken. 2 ...2..sesccensaesvseee 182
Thomas v. Rumsey.........-....e0 eee e ees 158 | Treadwin v. G. E. Ry. Co.... . ..... 408, 409
Thomas v. Russell ................ cee eeeee 563 | Treanor v. Donahoe.......... -......-see+ Tal
Thomas v. Weed .. vse eeees 227] Treat v. Browning ........... 2.5 14%, 648, 651
Thomas v. Wilson................. eee eee 219 | Tregoning v. Attenborough....... ...... 497
Thomas v. Winchester . 116, 269, 394 | Trelawney v. Coleman............... sees
Thomas Vi YOUNES + 5 ses secsces seagsass 170 | Trelawney y. Thomas..
Thompson v. Alger ...........-.0: sees eeee 239 | ‘Tremeere v. Morison...
Thompson v. Bowers.... .
Thompson y. Clendenning nine Hunts... cee.
Thompson v. Ellsworth ... . 186 | Trickey v. Larne.
Thompson v. Force..... . 587 | Trimmer v. Danby
Thompson vy. French ..... ........... e005 750 | Trip v. Thomas....
Thompson v. Gibson ........ a 547 | Tripp v. Gronner.....
Thompson v. Gillespy .... .....-----+-++ 191 | Trogden v. Deckard...... .. ....

Thompson v. Guthrie. .
Thompson v. Howes....
Thompson v. Hudson .....

Thompson v. McClelland ....
Thompson y. McCullough
Thompson v. Mylne.....
Thompson v. N. E. Ry.
Thompson v. Nye...
Thompson v. Parish
Thompson v. Phelan
Thompson vy. Pettitt.
Thompson v: Ross ...

2% | Troy v. Cheshire R. R. Co. ..
. 248| True v. Plumley...........
210 | Trust Co. v. Harris
. 170 | Tucker v. Call...
270 | Tucker v. Chaplin.
222 | Tucker y. Ives...
95 | Tucker v. Tucker
649 | Tucker v. Wright .
73 | Tudor v. Macomber

   

 

      
     
   
 
  

   
  
   
  
  
   
 
       
   

  
      
  

  
 
 
 

        
 
     
    
     
 
     

  

  

  

   
  

   
     
  
  
 

   
     
    
 
 
 
    
   
  
   
 
 
 
  

 

   
 
  
   

  
  

 

Thompson v. Rowecroft... .....2......... 467 | Turberville v. Broach .......... 0. ...... 169
Thompson v. Shanley Turner vy. Ambler.... 572, 574, 576
Thompson v. Society i 825 | Turner v. Davies... oi, -aibie'd cuclerana 432
Thompson vy. Stearns. ode 225 | Turner v. Diaper.... .........5-.--00- 160, 303
Thompson v. Thompson.............--... 614 | Turner v. Foxall..... a . 149
Thompson v. Wood... 826, 531, 711 | Turner v. Hardcastle ............... ..... 505 .
Thomson vy. Eastwood........... .s.. see 236 | Turner v. Lewis...... 6 002. cee e eee eee e eee 7157
Thrall v. Lathrop..... 500 | Turner v. Mason........ ........ 222 seeeee 307
Thorn v. Moser...... % . €16 | Turner v. Robinson... 266, 307
Thorndike v. Locke .. . 289 | Turner v. Stetts.......0.. cc cece cee eee eee 446
Thornton v. McKewan . 418 | Turner v. Thomas.... 2.0... .cceeee eee eee 191
Thornton v. Place ..... ... 160 | Turner v. Turner.. saiee, xieaed DTS.
Thorogood v. Bryan.... .....-...... - 105, 106 | Turner v. Walker....... .- 567, 571, 572
Thoroughgood v. Walker. .. 202, 206, 209 | Tuttle v. Brown.......... ...csee eee ee 32, 265
Thorpe Vv. Thorpe.... .......06. cece ee cnee 52] Tutton v. Andrews.........---..s0e- ences (42
Thorpe v. White ..... 305, 808 | Tutton v. Darke ........... cece eee eee ee 535,
Thorpe v. Wegfarth .. . 184 | Twycross v. Grant ........... cece eee eee 705
Threlkeld v. Fitzhugh .. . 292 | Twyman Vv. Knowles..........--....++-++- 544
Throckmorton v. Crawley. 185 | Tyler v. Wilkinson tae, 8
Throgmorton v. Davis.. . 620] Tyrer v. King........... pels sigan alice ba 86
Thynne v. Thynone.. . 480

Tibbs v. Brown... . 155] Ulman v Barnard..... aiaeietaaiai cosine reconsiate 505
Tifft v. Tifft........ ... 92] Underhill vy. Taylor...........-.eeec cee eee 152
Tighe v. Crafter.... . . 889 | Underwood v. Parks ....... .....60-.0200s 152
Tilley v. H. R. R.R. Co . . 15 | Underwood v. Stuyvesant .............-.. 7
Tillotson vy. Cheetham . 154 | Union Bank v. Williams.................. 222
Tilson v. Clark.......... .-.-..+++ org Union v. “Picayune” .... ..... pone .++ 83
Times Fire Assn. Co. v. Hawke . . 450] United Service Co., Johnson’s Claim,
Timmins v. Rawlinson......... - 360} _Re......... fiery. aceite Teaidsiny Se-sie 2G gee 110
Timms v. Shannon.. ..........-.-..-.005 172 | United Service Co., Re... marlea -ateis
Tindall v. Bell...... 124, 518, 600 |} Updegrove v. Zimmerman ... ........... 151
Tindall v. Tindall............-...-eeeeeeee 336 | Upton v. Ferrers........ 22-0225 seesens . 845
Tippin v. Ward.... .. .e. .. 244| Upton v. Lord Ferrers ........ .........
Titus v. Sumner... 620, 621, 630 | Usher v. Dansey.......... 730, 738
Tobin vy Harford .........---0s0ssseeeees 463 | Usher v. Noble.... a8 +++ 462, 466
Tobin v. Post...... + imew 165 a Usher v. Walters....... ........... insiaeaes 610
T SKROrrich 3.3.03 sian cosmesanscesceneee

Meas B relag pease . 621] Valentine v. Fawcett...... .......-..,... 782
Toledo, ce R. Co. v. Pindar. 96 | Valpy v. Okeley . ..... -» 245, 268, 696
Toledo, etc.., K. R. Co. v. Smith. 709 | Van Ankin v. Westfall..... asateiatsisinys's:3 648
Toll v. Hiller ...... sana en bose ..- 222) Van Bracklin v. Fonda.............0666-5 268
Tomlinson v. Day...... ie wm nen ee . .-. 865 ‘Van Buren Vv. Digges............. 005 « xan 208
 

 
 
   
   
  
 
  
  
  
 
  
 
  
       

 

  

 

 
 
 
 
 
  

 

 
  
  
  
 
 
 
 
  
 
 
  
 
 
 
 
 
 
  
 
 
   

Ixvi TasLEe oF Caszs.
Paae. PaGE,

Van Giesen vy. Van.Houten.......-.- Ms a Walker v. Moore .......sesccevcescces 20s Ot
Van Husan v. Kanouse Walker v. Needham :
Van Leuren v. Lyke ............-2e0re cree me Walker v. Nevil.......
Van Middlesworth v.Van Middlesworth, 168 | Walker v. Norton ......... as
Van Ness v. Hamilton ...........0-06+ eee 646 | Walker v. Olding.. .........- Vesa cabin bin p05 517
Van Rensselaer v. Jewett 218, 226 | Walker v. Priestly acaiasanasnrgintsle oid eters sue. Gene 836
Van Rensselaer ’v. genes 2 aie .. 218 | Walker v. 8. E. Railway Co.. reid tctoie 572, 587
Van Schaick y. R. R. Co. 108 | Walker v. Wosttelds
Van Slyck v. Hogeboom ... 450 | Walker v. Wilson..
Van Toll v. 8. BE. Ry. Co .....eseee eee eee 411 | Walker v. Winn....
Van Wyck v. Allen” ay Sake 270 | Walker v. Woolcott
Vance Vv. Forster . % , 450 | Wall v. London Real Property Co
Vanceh v. Hall ......2....02 cece ee eens 754 | Wallace v. Goodall .
Vandenburgh v. Truax.. 117 | Wallace v. Mayor... .
Vanderbilt v. Mathis .... 567 | Wallace v. Small ... .
Vanderslice v. Newton.. V1| Wallace v. Talbot........ ..---
Vanderveer v. Sutphin .. 149 | Wallace v. Vigus...........--
Vane v, Lord Barnard ... 296 | Wallace v. Wren...........
Vansandau v. Browne... 301 | Waller v. Long.... -. ..-
Vansandau vy. eaencnens . 839 | Wallis v. Alpine.... .
Vanzant v. Jones...... .. - 151| Wallis v. Carpenter
Varick v. Crane .........25-.005 220 | Wallis v. Goddard
Varney v. Brewster............ .. 174] Walls’ Appeal .
Vaughan v. Howe........ ... : 220} Walls v. Atchesor
Vaughan v. Webster......... 492 | Walls v. Johnson.
Vaughn v. Wood 259 | Walpole v. Ewer
Vaughton v. L. &N. W. Ry. C 409 | Walrod v. Ball.
Vaux v. Sheffer .. 518 | Walsh v. Bishop
Vedder v. Hildret. 18 | Walsh v. Mississ:
Veiths v. Hagge...... 225 | Walsh v. Walley... ........ ...
Venango, etc., Bai 184 | Walter v. Ghitsce. etc., R. R.Co.
Verill v. Minot ..............- . 73| Walter v. Post........ -s---eeee
Verry v. Massey .. . 662| Walter v. Sample .. ....... ...
Verry v. Watkins" . 659 | Walter v. Selfe.........-.-----+--
Vessey v. Pike.. . 647| Walters v. McGirt .....
Vicars v. Wilcock 111, 629, “ty 638 | Walther v.Wetmore...
Vicksb’g, etc., R. R. Co. v. Ragsdale.. 24, 396 | Walthew v. Mavrojani.
Viele v. Gray... ccc ccc e cee e cece e eee 616, 620 | Walton v. Fothergill ........... ......
Vines v. Serell ......... cece cee eee eee 624 | Walworth v. Pool....... ...-
Vivian v. Champion............ s.ssseeeee 862 | Wambough v. Bimer .... ....... -eeeeeee 200
Volton v. National, etc., Association .. 440} Wampach v. 8t. Paul R. R. Co. . 12
Von Hemert v. Porter 222 | Wanamaker v. Bowes.......... - 58
Vossel v. Cole ......--.. 658 | Warburg v. Tucker ........ . 877
Voss v. Howard........ceceeeeeee cee Ward v. Benson ............ « 492
Vulliamy v. Noble .. Ward v. Eyre........ einen ... 494

: Ward v. Henley.............-- ---425, 604
Wace v. Bickerton ........... ceeeceee sees Ward v. Hobbs..........-...200-2 eee -82, 273
Waddell y. Cook............ seareineta Ward v. N. ae etc., R. R.Co. ........- 26
Wade v. Comstock. 92 | Ward v. Smith ...........:0.0. 0ee ee ee 9, 713
Wade v. Leroy. ... Ward v. Weeks Seerenrene
Wade v. Powell..... Wardlaw v. McConnell
Wade v. Walden........ .. ...... Wardrobe y. Stage Co
Wadleigh v. Sutton Waring v, Cunliffe ................ 00 eee
Wagner v. Holbrunner... Waring v. Loder.... ........-2- sence ee 453
Wageatatt Vv. enotore

  
   
 
 
 
  
  
  
 
  

Grdyie Sacha eee

  
  
 
 
  
  

 

Warner y. Bacon..........-secee cree enee

   

 
 
 
  
 
 
  
 

Waggoner v. 25 | Warner v. Mo eey

fOr Vs GUD Orb. ais sjediacusiien cup eas tathe ate Warner v. Smith..

Waite v. N. BE. Ry. Co........... cece eee Warre v. Calvert .

Waite v. N. W. R.R. Co ......-.--- eee Warren v. Cole ......

Wake v. Tinkler ....... 2.0... c2- sees cease Warren v. Peabody...... ..........teeeee
Wakelin v. Morris. anne Indemnity Ins. Co........... 446
Walcot v. Goulding Warwick v. Foulkes ..... 57, 163, 590, 622, 631
Walden v. Sherburne . Warwick v. Richardson ............ .--.. 421
Waldheim v. Sichel.... Washburn v. Hubbard...............- : 83
Waldron vy. Coombe ............e scene eee Washington v. Planters’ Bank.......... - 215
Walker v. Barnes. ............. ccc ec cee eee Watcher v. Quenzer ............6.02 cee 642
Walker v. Bartlett ........... .cee eee eee Waterhouse V. Gill.......2.... cece eee eee 638
Walker v. Broadhurst............... sees Waters, Ex parte.......... 0 cee eee ees 195
Walker v. Brogden..............-.206 cee 44) Waters v. Bristol .... ........ cee cence eee "51
Walker y. Bynum............. 0.0.00. eee Waters v. Busard.........-... sees sceeceee 169
Walker v. Clements ........ ...cee sees eee Waters v. JOneS 2... - ce cseee eee tee anes 155
Walker v. Constable ...... ....... cece eee Waters v. Monarch Ins. Co 446, 451
"Walker vc BUNS os cvascrciau sieesuscraneed a Waters v. Towers ...... 32, 85
Walker v. Engler... Watkin v. Hall............ 0.00. seek eee 630
Walker v. Erie Ry. Co. Watkins v. Morgan .... ....... ...04. 198, 226
Walker v. Goe.......... Watney v. Wells ............ cece reer ewes 229
Walker v. Hatton.. Watson v. Ambergrate............ 2... 8%
Walker v. Herron........ 2) Watson v Bayless ............ee. eee eee 662
Walker v. Jackson .... Watson v. Christie . 148, 591
Walker v. Lane...... : Watson vy. Hensel .. . 169
Walker v. Leighton. sexes 169 | Watson ¥. Lane ...csccevsesccee ce es vn 3879
Walker v. Martin.... 567, 750 | Watson v. Mid Wales Ry. Oo. katie 189
Walker v. McKay. ..........-..6. sees 178, 174 Watson v. MOOPG sissies catowss cacgaten 617, 643

 
Tasie or Caszs. lxvii

   
   
      
    
  
  
 
 
 
 
 
 
 
 
 
 
   
  
  
  
 
 
  
    

  
  
   
 
 
  
   
 
 
 
 
 
  

     

   
 
   
  
   
 
 
   
  
    
 

 

 

  
   
   
   

      
 
  
   
 
  

    
 

 

 

PaGeE.

Watson v. Reeve..... * Agate iesieweees seas 613 | White v. Sealy. :
Watson v. Reynolds........ ...... 582 | White v. Steele. . ‘
Watt v. Potter ........ eo FEAe GAS White v. Tucker ‘
Watts v. Fraser...... é sie 648 | White v. Turner. if
Watts v. Greenlee . di White v. Webb 5:
Watts v. R 179 | White v. Word.. . 1%
Watts v. She epee a baseoneun Whitehouse v. Atkins 526
Wayman vy. Cochraue. : 220 | Whitehouse v. Fellowes. - 141
Webb vy. Conn... ..... .... 220] Whitfield v. Lord Le pesben . 414
rer v. Duckingfiela oie Whitfield v. vaittaelg 489
Webb v. James.......... a 337 | Whitley v. Murray .. - 805
Webb es Long....... Saaiaiaen: salad «+++. 3] Whitlock v. Castro.. 219
Webb vy. Sturtevant.. .. 642 | Whitmore v. Black . «+. 493
Webb v. Thompson........... . 151| Whitmore v. Coates.......... ... ... 239, 240
Webber v. Kenny....... ....... .. 150 | Whitmore vy. So. Boston Iron Co ..... 33, 265
Webster v. Wade............ 00005 .. 817 | Whitney v. Elmer. - 169, 658
Webster v. De Tastet. 3 Whitney v. Hitchcock . 60
Weedon v. Timbrell... Whittaker v. West Boysten -»» 109
Weeks v. Propert..... z Whitten v. Fuller........ 0... .. +» 508
Weens v. Vintress.... 0.2.0... cece eee eees 226 | Whittington v. Farmers’ Bank. . aseee 184
Weinberger v. Shelly ........... is Whittle v. Frankland........ 316
Welch vy. Durand ; 59 | Whitwell v. Atkinson 145
Welch v. Ireland .. 338 | Whitwell v. Short ... wee 126
Weld v. Oliver ..... ya. (4 Wine! aera Whitworth ¥. Hall sedi irsaay ross as veuee 567
Weller v. Goyton 7129 | Whitworth v. Hart..............c0ccceeueee 215
Welles v. Boston Ins. Co 4 6, 446 | Wichtrecht v. Hasnaont ; soca 118
Wellington v. Downer K. 0. Co.. 89, 118, 394 | Wicker v. Hoppock .................00005 15
Wells v. Abernethy.... ....... ...... 248, 250 | Wicker v. Hotchkiss « SPdieysicie 584
Wells v. Hopkins . .. 347 | Wicks v. Fentham . sr teense. s 567
Wells v. Howell rea Wiffen,v. Roberts..................04. 348, 349
Wells v. Moody.. Wightman v. Providence........-... -+.. 750
Wells v. Sanger. . Wightman v. Townroe..... ..... ... ... 685
Wells v. Watling... Wigg Vv. Garden ......... cc cece cece eee cee 243
Wendell v. Johnson Wiggett v. Fox... ..- cece eee eee eee 679
Wernwag v. Brown a Wiggin v. Coffin. .... 572, 752
West v. Anderson... 0... 2... .-. ee ae Wiggins v. J ohnston.... ..clessecec lessee 392
West v. Baker..... ..... .... Wigley v Ashton..............2.. cece eee 686
West v. Chamberlin........ .. «=. 429] Wigmore V. day .... 0. ..ec eee e cece eee ee 679
West v. Forrest....... Wilbeam v. Ashton . se savpinndiaiavon 204
West v. Meddock. «++ 170| Wilborn v. Odell .......-.... cece cece wees 651
West v. Rice....... ; a Wilby v. Elston..... a «-. 632
West v. Walker Wilcher v. Hamilton 218
West v. West....... Wilcox v. Howland ~ 222
West v. Wentworth.. Wilcox v. Kinzie . 542
Western Gravel Road v. Cox . &2| Wild v. Holt ..... , 546
Western, etc., Ins. Co. v. Transportat: n Wilde v. Clarkso 340

CO: nes epee 445 | Wilde v. Fort.... 2 282
Western, etc., R. Wiley v. Campbell. -.. 651
Westlake v. De Graw . 5 | Wilford v. Berkele: 746, (49
Weston v. Beeman.. Wilhelm y. Caul... ar ais - ... 808
Weston v. Dobniet.. Wilkes v. Hungerfo: . 547, 558
Weston v. Grand Trunk R. R. Co 26 | Wilkinson vy. Grant . - oe 215

Wilkinson v. Hyde.. - 461

Westwood v. Cowne.... ......- aoa Bas were 712 | Wilkinson v. Sharland ... 738
Wetherbee v. Marsh.... .... ........ -. 149] Willans v. Taylor.... 572, 577
Weymouth v. Chicago, etc., R. R. Co.... 493] Willets v. Green .. sees 307
Wharton v. Lewis.......--..-00essesceeeees 655 | Williams, Ex parte......... .... cece ee eee 222
Wheaton v. North Beach, etc., R. R. Co., 750 | Williams v. African Steamship Co . 406
Wheeler v. Nesbitt........ ..... 2... 581, 587} Williams v. Archer.............. 510, 514, 521
Wheeler v. Pettes... zi -...-.. 10] Williams v. Bosanquet .............-.+-++ 687
Wheeler v. Shields .. Williams v. Breedon ............002--- eee By
Wheeler v. Sims .... Williams v. Bryant... 3
Wheeler v. Styles ......... ....-.....- Williams v. Burrell .. fe 131, 288, 303
Wheelock v. Boston & A. R. R. Co. - 108} Williams v. Cooke ..........0...eceeseeeee
Wheelock v. Pneumatic Gas Co... . 176 | Williams v. Cooper :...... ....... eee eeee 119
Wheelock v. Wheelwright..... « 489 een v. Cawley........-.----05- 149, 150
Whetstone v. Dewis.... .. -.. 478 | Williams v. Currie ....... 666. eee cee eee TAT
Whincup v. Hughes..... ia Seas. ogee SSR 185
Whipple v. Gamberiand ‘Mie. Co Wilms v- ae Hane we
Whirley v. Whiteman ... ..... Williams v. Earle ............6.2. cece eens 379
Whitaker v. Carter ..... Williams v. East Ind. Go.......20.00000 393
Whitaker v. Robinson Williams v. Finch............-.+-..--. 225. 307
Whitaker v. Sandifer.... Williams v. Finney. aE sahusalayinstets 216, 225
Whitaker v. Turnbull ....... ies Williams v. Garrett ....... 0.25... e sees sees 593
Whitbeck v. ae Y.C.R.R. Co. .-. 648 | Williams v. Gilchrist ................6.. . 1%
White v. Arleth ........... --- 15] Williams v. Glenton... «+ 205, 280
White v. Hardin ... ... .53 | Williams v. Greenwade.. ++» 151, 630
White v. Jandon. .....- . a Williams v. Gwyn........ akon shetravetetaes
White v. Madison ........ -.2s-sseeeee eee 452 | Williams v. Haig..........0-..0005 noedipy we 155
White v. Miller........ . --.-. 1%, 34, 86, 270 | Williams v. Harrison................. & Bi) 650 ..
White v. atonelee Gsfay Sereissa ais Shore (el agece eigeciancaalees 541 | Williams v. London Assurance Co. 2 cc
White v. Nellis..... "Ted, 165, 658 | Williams v. Miller. .................. 2...
White v. Salisbury .......... ele dehasstare ares iste 2441 Williams v. Minor................06-. 148, ait
 
  
 
 
 
   
  
  
 
   
  
 
 
  
  
   
  
 
 
  
  
 
   
 
 
 
  
     
       

xvii

ag
Williams vy. Morland........... .... Sidaidiess
Williams v. Mostyn......... 1, 606, 607
Williams v. Reil.... .. bps dds 51, 597
Williams v. Reynolds. 68, 89, 247
Wilhianis ¥; SHOrMan visicievsescesas eves 215
Williams v. Sproul.............220+eeeeee 60
Williams v. Vanderbilt........ 29, 69, 71, 72
Williams v. Vanmeter...........6.--+++ <

Williams v. Willhite...
Williams v. Williams..

 

Williamson vy. Dillon .... 248
Williamson vy. Williamson 220, 222
Willis v. Bernard ...........-. eee ee secre 666
Willoughby vy. Swinton ..................- 838
Willoughby v. Thomas. - 818, 324, 825, 326
Wills v. Brown...... ...2:.sseeeeeeee 216, 225
WALIS Vi WellSi. cjsicse.coe oa acianicmaiaens 444, 499
Wilmarth v. Mountford .... ........ -.--.
Wilmot v. Smith

Wilson v. Apple

Wilson v. Barnes

Wilson v. Codman

Wilson v. Dean

Wilson v. Edmonds....

Wilson v. Finch Hatton

Wilson v. Fite

Wilson v. Forbes...

Wilson v. Gabriel..

Wilson v. Hicks....

Wilson v. Holden..

Wilson v. Keating ....... .cccccee eee e eee
Wilson v. Keedy............ eee cece eee e ee 169
Wilson v. King.................205 cece eee 587
Wilson v. Lancashire & Y. Ry. Co.... a. i
Wilson v. Little...... 257
Wilson v. Middleton 592
Wilson vy. Mitchell . 650

 

Nations.... ......
Newport Dock Co
Robinson...

Wilson v.
Wilson v.
Wilson v.
Wilson v.
Wilson v.
Wilson v.
Wilson v.
Wilson v. Wigg...

Willson v. Willson.
Wilt v. Vickers.....
Wilton v. Webster.

 

 

Taste or CasEs.

 
 
   
   
 
  

 

PaGe.
Wollaston v. Hakewill........ eile sere 687
Wonderly v. Nokes.. « 644
Wood v. Akers...... - 178
Wood vy. Ashe ........-+-0+++ - 270
Wood V. Bell........ ccc eee eens ... SOL
Wood v. Hardy 172, 178
WOO Vs. UPd essiscess ¢: qaiderviaire acinar 654, 749
Wood v. Mayor of New York...... ...... 176
Wood v. Morewood.......... 495, 546
Wood v. Scoles... - 229
Wood v. Smith... 193
Wood v. Sutcliffe........ -.2.. eee eeee eee 8
Wood v. Waud.. ‘ . 557, 558
Wood v. Weir........._.... 573, 574
Wood v. Williamsburgh .................. 642
Wood. etc., Assoc. v. Dubuque........ 89, 91
Woodbeck v. Keller ............6--0+eeeee 644
Woodbury v. Long....- ... ..-....-2008 486
Woodcroft v. Thompson.............. - 581
Woodford v. Hades............-..5 . 142
Woodger v. G. W. Ry. Co.........-. -. 39, 400
Woodhouse v. Swift... ........... cesses 147
Woodman v. Hubbard..............-..... 4389
Woodruff v. Richardson.............. 643, 753
Woodruff v. State ... ..... see ol
Woodruff y. Woodruff.............-.- 566, 567
Woods v. Carlisle....... Biciciate arava eicishese aye ince 169
Woods v. Pope ig. biaad sii biesetsiane doSeoiareiehe lens Hietetnsions U5
Woodson ¥. Scott ...........2 202 cee cece T51
Woodward v. Dowse... ....--.....255-525 478
Woodward v Paine..............--2.:000- 756
Woodward v. Washburn............... .. 81
Woodworth v. Woodburn................ 265
Woolcott v.Grey....... ce. cece ee cece ee 146
Woolsey v. Crawford... ..........-..-- 350
Woolveridge v. Steward......... ........ 423

Worcester School Trustees v. Rowlands, ee

Wordsworth v. Harle
Worford v. Isbel..

Workman,v. Gt. N
Wormer v. Biggs.....

Wormouth y. Cramer.
Worrell v. McClinaghan .
Worster vy. Canal Bridge.
Worth v. Edmonds....
Worthen vy. Wilmot..

  
   
    
   

 

Winn v. Young....... Wright v. Bonta .......... 750
Winborne v. Bryan Wright v. Butler.........

‘Winchell v. Strong Wright v. Compton................00- eee 73
Winder v. Diffenderffer Wright v. Court... 2.0.2.0 .ee cece cece 125
Windham v. Wycombe............... Wrighit ¥. EAVGS .cccsccccsaceeeanewac ds seme 222
Windle v. Andrews...............0.200065 WHeht 0; LOWS ceccssessg csensam we duane 782
Winn v. Southgate................... 0.085 Wright v. Malden, etc., R. R.Co........ 3
Winne v. Kelly....... Wright vy. Rogers I
Winship v. Enfield......... Wright v. Schroeder ...

Winship v. Neale....... Wright v. Stowe. 11
Winslow v. Norton.. Wright v. Sun F. Ins. Co ...........2...65 446
Winsor v. Lombard.. Wright v, Tompkins.. .............. 0... 53
Winsor v. Savage... . Wright v. Wright ...............00 cee eee 805
Winston v. Metcalf............... Wright v. Woodgate .............:ecee eee 621
Winter v. Haldimand Wrightup v. Chamberlain ............... 131
Winter Vi Henn oc cccce: cess oat oagiewn Wrightup y. Greenacre ..................5 610
Winter v. Trimmer Wylie v. Birch ........... Il, 606
Witter t. Wiro0l wucccane ans ei ass seme xe 666 | Wyman v. Ballard ...........-.......0.005 292
Winterbottom v. Earl of Derby.. - 558 | Wyngert v. Norton..................20 eee 310
Wintle v. Rudge................ - 507

Wintz v, Morrison,........... - 265 | Yale v. Saunders...................0000005 506
Wise v. Metcalf................. . 683 | Yardley v. Arnold..... .......... ..eeeeee
Wiseman v. PanamaR. R. Co... 318 | Yates v. Dunster ...............5

Wishart v. Downey ............66. esse. 171 | Yates v. Hastwood ..............:.0006 5
Withers’ Appeal ...............0 0000s 218, 221 | Yates v. Sherrington ...

Withers v. Henley............ ... :.. 141] Yates v. Whyte .............

Withers v. Reynolds.................00005 801 | Yea v. Lethbridge......... ..

Wolcott v. Mount.... 17, 34, 270 | Yeatman v. Dempsey .... ..........--.--- 614
Wolf v. Beales .... «++ 170 | Yeates v. Reed. ® 2.0.0... cece ee 151, 154
Wolf v. Radifer ........ ....... 650 | York v. Chilton ........ 0.0.0... cece cece ees 573
Wolf v. Washburn......... 174 | Young v. Bank of Bengal................. 193
Wolfe v. Howard Ins. Co. seve veeseee, 444] Young v. Bennett........... 148, 150, 155, 642
Wolfe v. Howes........ ae 5 8 Hees 305, 808 | Young v. Black . ...........00 acess 17%
Wolfersberger v. Bucher .... .... seeeeee 179 | Young v. Brompton, etc., Water W’ks Co., 603
Tasie oF Caszs. lxix

Young v. Gregorie
Young v. Hoover.
Young v. Pacific Mi

PaGeE. Paes.

. 572 | Zachary v. Swanger.... ...

. 146 | Zantzinger v. We’ enueian
29| Zehner v. Dale.... .. ‘ 16, 248

  
 
 
 

   
 
 
  

 

Young v. Slemons. 149, 643 | Zeigler v. Powell 61
Young v. Spencer ..... .. 548, 558 | Zenobia, The.... see 80
Young v. 'hompson. ... disecioiatSieleas 220 | Zerfing v. Mourer........ssscsccscssceeees 166
Young v. Turing........ .20. cece eee nena ee 456 pecne nae v. Shoei «+» 616
Yundt v. Hartruntt. Comaulmoteiees eas 659, 661 | Zung v. 8. H. Ry. Co...... .... 411

. E. ae
Zwi henbart v. Ylexander vereeereensecse VOL
“DAMAGES.

[ *1]

CHAPTER I.

OASES IN WHICH DAMAGES MAY BE RECOVERED.

Szc. 1. Definition of the term ‘‘ damages.”
2. Former rule as to damages in personal, mixed and in real actions.
3. Damages in actions on a penal statute.

4. Or a prohibition.

Sec. 1. Definition of the term “ damages.”

Damages are the pecuniary satisfaction which a plaintiff may obtain

by success in an action.?

1 The author’s definition of the term
‘‘damages” is very guarded, and is the
most accurate that can be given. It
is very often said that damages are a
compensation given for an injury
sustained, but this is not literally
accurate, because, as we shall see here-
after, it often happens that damages
may be recovered, where no pecuniary
injury has been sustained, or even
where the plaintiff has been positively
benefited pecuniarily by the act com-
plained of. This condition exists,
whenever there has been an infringe-
ment of a right, without reference to
its actual pecuniary result. Therefore,
the author's opinion seems to be accu-
rate and the best that can be given.
His remarks in reference to the fluctu-
ating character of damages, and the
necessarily loose rules that sometimes
control their ascertainment, are justi-
fied by the experience of all practicing
attorneys. The only safeguard or
protection to defendants, in some

They may arise to almost any amount, or

classes of actions, particularly those
for personal injuries, is the ultimate
judgment of the court as to whether,
in view of all the circumstances of the
case, the damages given are too large.
Yet, notwithstanding the: large dis-
cretion given to juries in such cases,
the most efficient rules have been de-
vised to restrict the grounds upon
which damages may be given, within
as narrow limits as possible. Indeed,
it may be said that the law relating to
damages is one of the most difficult,
and at the same time most carefully
adjusted branches of the law. Too
mouch laxity upon the one hand, or too
stringent restriction upon the other,
would almost certainly operate un-
justly upon the parties, and to adjust
the rules so as to avoid these ill con-
sequences, and do as nearly even and
exact justice between the parties as
possible, has been a work which has
made heavy demands upon the highest
wisdom, the best judgment and the
9 CAsEs in wHicn Damages May BE RecovERED.

they may dwindle down to being merely nominal. They may be
governed by rules so strict as to enable the judge to dictate their
amount as a matter of law; or they may be left, within loose limits,
almost entirely to the discretion of the jury. It becomes then a
most important inquiry to ascertain the principles by which they
are measured, and the species of evidence by which they may be
aggravated or reduced. It is proposed in the following work, first,
to state briefly the actions in which damages may be recovered; then
to examine the rules by which they are measured ; and finally, to
inquire into the practice which prevails as to the pleading and
assessment of damages, and to point out the cases in which the
court will review the decisions arrived at by a jury.

Sec. 2. Former rule as to damages in personal, mixed and real actions.

Till of late years actions were personal, real or mixed. Damages
were recoverable in all personal actions at common law; and so
they were in mixed actions by the very definition of the latter, as
being “suits wherein some real property is demanded, and also
personal damages for a wrong sustained.”’ But no damages could
be obtained in real actions. In these the plaintiff only claimed title
to real property, but not damages, and the court could not give the
[*2 J demandant that *which he demanded not. Judewx non red-

dat plus quam upse petens requirit.” This exception was
once very important, but after stat. 3 & 4 W. IV, c. 27, which, at one
blow,’ swept away sixty-two real actions with barbarous names, it be-
came quite insignificant. That statute left only two real actions, viz.,
writ of right of dower, and ejectment. The latter action, too, in one
instance assumed the form of a mixed action, when brought by Jand-
lord against tenant; in which case damages might be obtained for
mesne profits.* Quare impedit, and Dower unde nihil habet,

most sterling integrity of the courts. ifornia. But it will be found upon

In some of the States of this country,
especially in Louisiana, by the Civil
Code, of 1866, the legislature has at-
tempted to define the grounds upon
which damages may be given, and a
similar attempt has been made in Cal-

13 Bl. Com. 118,
2 2 Inst. 286.

examination that these enactments
merely embody the common-law rules
and perhaps the only good results de-
rivable therefrom is greater perma-
nency.

’

88. 36.
415 & 16 Vict., c 76, 5. 214.
Cases In wHicH Damacrs May BE RECOVERED. 3

remained both mixed actions, in which damages might be obtained,
as will be seen under those heads.

These distinctions are now obsolete. All actions are commenced
by the ordinary writ of summons indorsed with a statement of the
nature of the claim made, or of the relief or remedy required. The
action for recovery of land has become still more of a mixed nature
as claims may be joined with it for mesne profits, arrears of rent, or
breach of any contract under which the land is held;1 and there
seems no reason why Quare impedit and Dower should not be
joined with other causes of action if they can be conveniently dis-
posed of together.’

No damages are recoverable on an indictment, or information, as
the suit is maintained in the name of the king;* and even where
the statute gives damages to the person aggrieved, they cannot be
obtained on the indictment, but must be sued for in an action on
the statute, in the name of the party grieved.‘ But an informer,
upon conviction of the prisoner on any penal law, may have the
third part of the fine the court set upon him, according to the king’s
privy seal to that purpose.*

Sec. 3. Damages in actions on a penal statute.

Where a defendant is sued in debt upon a penal statute, several
distinctions are taken as to his liability to damages for the detention
of the penalty. Where the action is brought by a common informer,
no damages can be obtained ; because as he had no right to the money
before the action was *commenced, it cannot be said that it [#3]
was detained from him. But it is otherwise where the penalty
is given to the party grieved.’ In the latter case, too, the further dis-

1 Ofd. 17, B.S
* Ord. 17,R. 8.
21 Roll. Abr. 220.

plied with in all respects. Berry v.
Stinson, 23 Me. 140; Webb v. Long, 17
Vt. 587; Com. o. Cutler, Thacher’s Cr.

42 Hawk. P. C., c. 25,8. 8. But,
unless the statute provides otherwise,
the action must be in the name of the
State. Caroon v. Rogers, 6 Jones’
(N. C.) L. 240; State o Stanford, 20
Ark. 145. But generally these statutes
provide that the action may be
brought in the name of the informer
and the court before whom, as well
as the kind of action to be brought,
and the statute must be strictly com-

Cas. 187; Megargell ». Hazleton Coal
Co., 8 W. & 8. (Penn.) 342; Pike v.
Madbury, 12 N. H. 262. And any
failure in this respect may be shown
under the general issue. Pike ». Mad-
bury, ante.

5 R. 0. Gouer, 1 Keb, 487.

®* North v. Musgrave, 1 Roll. Abr.
574; Frederick v. Lookup, 4 Burr.
2018; Cuming ». Sibly, id. 2489.
Where the penalty is given “ one-half
4 ASES IN wa1cH Damages MAY BE RECOVERED.

tinction is taken, that when a statute gives a penalty certain, and
also an action of debt, if the defendant does not pay on demand,
but forces the plaintiff to a suit, he shall recover his damages,
because the other did not pay the duty due by the statute upon
demand. But where the penalty is uncertain, as triple damages, no
damages are allowed for detention." The mere fact that damage
has resulted to a person from the breach of a public, statutory duty,
does not necessarily vest a right of action in the person suffering
the damage, against the person guilty thereof. Whether the breach
does or does not give such right of ‘action, must depend upon the
object and language of the statute in question.’

Where the action is against several for a penalty given by statute,
only one penalty can be recovered against all. Although the words
are, “that every person offending contrary thereto shall forfeit to
the party aggrieved for every offense, etc.,” yet the meaning is,
that the penalty shall relate to the offense and not to the person.”

Sec. 4. Or a prohibition.

When a party persists in suing in an ecclesiastical court after a
prohibition has been delivered, damages will be given, either in an
action upon the prohibition, or upon attachment.*

ute otherwise provides, the penalty

to the complainant and one-half to the.

treasurer, etc.,” and the statute does
not say who may sue, the party suing
must show some authority for do-
ing so. Seward v. Beach, 29 Barb.
CN. Y.) 239. And, unless the stat-

1North v, Wingate, Cro. Car. 559;
Sedgwicke v. Richardson, 3 Lev. 374.

2 Atkinson v. Newcastle, etc., Co.,
2 Ex. D. 441; questioning Couch »v.
Steel, 3 E. & B. 402.

® Patridge v. Emson, Noy. 62.
Where a penalty is imposed on a con-
tinuous offense, one penalty only is
recoverable, Garrett v. Messenger, L,

must be sued for in the name of the
State. State v. Stanford, 20 Ark. 145;
Caroon v. Rogers, 6 Jones’ (N. C.) L.
240. ,

R., 2 0. P. 583; 36 L. J. C. P. 387.
See Apothecaries’ Co. v. Burt, 5 Ex.
863 ;19 L. J.Ex.334. Nominal damages
are not recoverable in an action for a
penalty. Hamilton v. Ward, 4 »Tex.
356.

4Facy v. Lange, Cro. Car. 559;
Heywood »v. Foster, 3 Lev. 360.
Src.

OM DH

382.

32.
34.

35.
36.

37.
38.

Nommat Damages. 5

*CHAPTER II. [*4]

NOMINAL DAMAGES.

. What are.
. Nominal damages where there is an injuria absque damno.
. Cases in which absence of loss destroys right of action.
. Damages not necessarily nominal where no actual injury.
. Cases where damage is of the‘essence of the action.
10.
11.
12.
13.
14,
15.
16.
1%.
18.
19.
- 20.
21.
22.
23.
. Special damages from non-payment of money.
25.
26.
27.
28.
29.
30.
31.

Damages in debt.

Damages not a complete compensation.

Rules in actions of contract.

Hadley v. Baxendale.

Three rules in Hadley v. Baxendale.

First rule. Damages arising in the natural course of things.
Value of article dependent on season. Fletcher v. Tayleur.
Damages for loss of season. Wilson v. Lancashire, etc., Railway.
Fall in market value of goods. Collard v. S. E. Railway Co.
Selling the test of depreciation.

Same rule in America.

Does not apply to carriers by sea. The Parana.

Damages where goods cannot be replaced.

Expenses arising from breach of contract.

Inconvenience arising from breach.

Damages from breach of warranty.

Special loss not known to defendant. Portman v. Middleton.

Smeed v. Foord.

Gee v. Lancashire, etc., R. R. Co.

Meaning of market value. Gt. Western Railway Co. v. Redmayne.

Different results contemplated by each party. Cory v. Thames Iron-
works Co.

Damages not contemplated by the defendant. ,Hales v. London,
etc., Railway Co.

Expenses incurred by delay of goods.

Loss of special contract not recoverable. Horne v. Midland Rail-
way Co.

Non-delivery of telegram.

Whether any liability arises from mere communication of special
circumstances. :

Cases of common carrier. British, etc., Saw Mill Co. v. Nettleship.

Same view expressed in Horn ». Midland Ry. Co.
6 Nomar Damages.

Sxc. 39. Same question in Elbinger Actien-Gesellschaft », Armstrong.
40. Simpson v. No. Westn. Railway Co.
41, Rules suggested in place of third rule.
42. Principle suggested in Fletcher v. Tayleur.
48. Cases in which the principle would apply.
44, Would exclude exceptional profits.
45. Questions whether motive can be a ground of damage in actions on
contract.
46. Failure to make out title on sale of land.

Sec. 5. What are.

It was laid down in the preceding chapter that damages are re-
coverable in all personal actions; and not only may they be recovered,
but they must necessarily be so in every case where the plaintiff is
entitled to a verdict. The amount, of course, depends upon the
nature of the action and the evidence. Where he gives no evidence
of his loss, the damages must be nominal.

“Nominal damages mean a sum of money that may be spoken
of, but has no existence in point of quantity.”* Therefore, where a
plaintiff sued in an inferior court of record for a debt of 507., which
was the extent of its jurisdiction, and neither recovered nor sought
to recover damages, except for the purpose of obtaining costs, it was
held that nominal damages for this purpose did not place the debt
beyond the jurisdiction.’

Sec. 6. Nominal damages where there is an injuria absque damno.

“Every injury imports a damage, though it does not cost the
party one farthing ; for a damage is not merely pecuniary, but an
injury imports a damage when a man is thereby hindered of his
right. As in an action for slanderous words, though a man does not
lose a penny by reason of the speaking them. So, if a man give
another a cuff on the ear, though it cost him nothing * * * So
a man shall have an action against another for riding over his ground,
though it do him no *damage, for it is an invasion of his

*5

el property, and the other has no right to come there.” *
11 Per Mautez, J., 2.0. B. 499. lez, when properly applied, to pre-
® Joule v. Taylor, 7 Exch, 58. vent a recovery in an action, has

? Per Hout, C. J., Ashby v. White, reference to the injury and not to the
Ld. Raym. 938, 955. And see Per resulting damage. It is never properly
Erux, C. J., Smith v. Thackerah, L. applicable to a wrongful and positive
R,10C. P. 566; 85 L. J. C. P. 276. invasion of property, as every violation
The maxim de minimis non curat of aright imports some damage, and if
Nomar Damacrs. 7

This rule applies equally whether the action is on a contract or
for a tort. A few examples will illustrate it. Where the defend-
ant, a banker, had refused to pay the plaintifi’s checks, though he

none are proved the law gives nominal
damages to protect the right. Fullam
v. Stearns, 30 Vt. 443; Paul v. Slason,
22 Vt. 231; Whipple v. Cumberland
Mfg. Co., 2 Story (U. 8.), 661; Seat
v. Moreland, 7 Humph. (Tenn.) 575;
Bagby v. Harris, 9 Ala, 173; Deven-
dorf v. Wert, 42 Barb. (N. Y.) 227;
Browner v. Davis, 15 Cal. 9. And even
though the damages are so small as to
be incapable of estimation, the rule
applies. Little v. Stanback, 63 N. C.
285; Cory v. Silcox, 6 Ind. 39. And
the same is also true, although no
damage ensues from the act complained
of, or even though it results in a
positive benefit to the party complain-
_ing. Francis v. Schoellkopf, 53 N.Y.
152; Stowell v. Lincoln, 11 Gray
(Mass.), 484; Munroe v. Stickney, 48
Me. 462; Monroe v. Gates, 48 id. 463;
Champion v. Vincent, 20 Tex. 811;
Gile v. Stevens, 13 Gray (Mass.), 146;
Mosotti v. Page, 12 C. B. 648; Bond
g- Hilton, 2 Jones’ (N. C.) L. 149;
Quin v. Moore, 15 N. Y. 432. ‘*When,”
says the court, in Hathorne v. Stin-
son, 12 Me. 183, ‘‘one encroaches on
the inheritance of another, the law
gives a right of action, and even if no
actual damages are found, the action
will be sustained and nominal dam-
ages recovered; because, unless that
could be done, the encroachment ac-
quiesced in might ripen into a legal
right, and the trespasser, by a continu-
ance of his encroachment, acquire a
perfect title.” See, also, Seiden-
sparger v. Spear, 17 Me. 123; Little
v. Stanback, 63 N. C. 285.

This rule is predicated upon, and is
the legitimate fruit of the rule of law,
that every man has exclusive dominion
over his own property, and aright to
use and enjoy it according to his own
notions, without let, hindrance or in-
terference from others, so long as he
does not invade their rights. He is not
compelled to be benefited against his
will, nor to submit to the taste or dic-
tation of others, in the lawful use of
his own property. This right has al-
ways been respected and carefully
guarded by the courts, and any in-

fringement thereof, whether in the
form of a trespass; Champion »,
Vincent, 20 Tex. 811; a nuisance
or other invasion of the right of
another; Monroe »v. Stickney, ante;
Barnes v. Hathorn, 54 Me. 124; Evans
v. Ewens, 17 L. T. (N. S.) 741; is
actionable, and nominal damages are
recoverable even though no damage
results therefrom. Stowell ». Lincoln,
11 Gray (Mass.), 434. This was well
illustrated in a nist prius case tried
before WEsTBROOK, J., at the Albany
circuit, February, 1875. In that case
an action was brought by the plaintiff
against the defendant to restrain him
from maintaining a slaughter-house
near the plaintiffs asylum, and from
permitting the bloed and refuse there-
from to escape into the water of a
small brook that run through their
grounds. The judge submitted to
the jury several inquiries, among which
were these:

ist. Did the defendants discharge
the blood and refuse from their slaugh-
ter-house into the brook so as sensibly
to pollute the water thereof.

2d. Has the plaintiff sustained any
damage therefrom?

To the first of these inquiries, the
jury returned an affirmative, and to
the last a negative answer. Thus we
have a case where the jury found an
invasion of a right, but no damage
therefrom, but the court held that this
must be treated as a verdict for the
plaintiff for nominal damages, because
at found thata substantial right of the
plaintiff had been invaded. I donot cite
this case because it expresses any new
doctrine, but because it is a very apt
illustration of a doctrine that is very
old,and very just, and indispensable for
the maintenance of the rights of per-
sons to exercise dominion and control
over their own property, and to pre-
vent the acquisition of antagonistic
rights by prescription. It may be laid
down as an invariable rule that for
any invasion of property itself, or of a
substantial right of property, nominal
damages are recoverable whether any
actual damage results therefrom or not.
8 Noma Damacss.

had funds in his hands, but no injury was proved, nominal damages
were given.’ So, where, in an action by the creditor against the
surety, it appeared that the principal debtor had indeed broken his
agreement ; but that the only injury accruing to the creditor arose
from his own voluntary act, in making advances to which he was
not bound.? So, nominal damages may be obtained for imitating
the plaintiff’s trade-marks, or the wrappers in which his goods are
made up ;* or for misrepresentations as to the conditions of an in-
surance company, whereby the plaintiff was induced to effect an
insurance with it;‘ or for an infringement of any easement or
right connected with land, though no injury is proved, or even

alleged.*

Munroe ». Gates, 48 Me. 463; Stowell
v. Lincoln, 11 Gray (Mass. ), 434; Kim-
el v, Kimel, 4 Jones (N. C.), 121;
Francis v. Schoelikopf, 53 N? Y. 152.

By substantial right is meant a right
incident to property, more especially
real property, arising either as a natural
or necessary incident thereof, or one
which is annexed to it either by grant
or prescription, and is essential for the
reasonable or convenient enjoyment
of the property, either for the use to
which it is devoted or such purpose as
it may be devoted to, or the party
owning it may lawfully choose to de-
vote it to. It is not essential that the
right should be necessary to the enjoy-
ment of the property, if it adds to the
convenience of its use, or to its com-
fortable enjoyment, so as in any sense,
whether in point of comfort or eligi-
bility of enjoyment, or in any sense
has a special value or importance, it
is a substantial right, within the mean-
ing of the term and is entitled to pro-
tection from ‘invasion or injury as
much as the property itself. Wood on
Nuisances, 824.

The right to the natural flow of
water; Tyler v. Wilkinson, 4 Mas. (U.
8.) 897; Mason v. Hill, 5 B. & Ad. 1;
to have it come undiminished in
quantity. Chasemore v. Richards, 7
H. L. Cas. 349; Wood v. Waud, 3

1 Marzetti v. Williams, 1 B. & Ad.
415.

? Warre v. Calvert, 7A. & BE. 148,
* Blofeld v. Payne, 4B. & Ad. 410.

Exch. 748; Clinton v. Myers, 46 N. Y.
511; 7 Am. Rep. 373; and unpolluted
in quality, are substantial rights.
Holsman v.' Boiling Springs Co., 14
N. J. Eq. 835; Stockport Water Works
Co. v. Potter, 7H. & N. 160; Wood
v. Sutcliffe, 8 Eng. L. & Eq. 217. So
is the right to have the air come to
one’s premises ordinarily pure and free
from noxious smells or deleterious or
disagreeable impregnation. Adams 0.
Michael,38 Md. 123; Francis. Schoell-
kopff,53 N.Y. 152; Cleveland v.Citizens’
Gas Co., 20 N. J. Eq. 201; Crump 2.
Lambert, L. R., 3 Eq. Cas. 409;
Walter v. Selfe, 15 Jur. 416; 4 Eng.
L. & Eq. 20; Smith v. Humbert, 2
Kerr (N. B.), 602; Stowe v. Miles, 39
Conn. 426; Catlin v. Valentine, 9
Paige’s Ch. (N. Y.) 576; Rex v. Cross,
2 C. & P. 4838; Peck ». Elder, 8
Sandf. (N. Y. Sup. Ct.) 126. A right
of access to a street; Stetson v. Faxon,
19 Pick. 147; a right of way; Shipley
v. Caples, 17 Md. 179; of drainage;
Bassett v. Salisbury Manuf. Co., 48 N.
H. 249; also 8.C., 28 id. 488; or
indeed any right annexed to an estate
either by grant or prescription or law-
fully vesting in its occupants; Daniel
v. Anderson, 31 L. J. Ch. 610; Mc-
Roberts 0. Washburne, 10 Minn. 238;
Corning ». Troy Iron Works, 40 N. Y.
a Gurney ». Ford, 2 Allen (Mass.),

‘Pontifex ». Bignold, 3 M. & G. 63.
*Embry v. Owen, 6 Exch. 353;
Northam ». Hurley, 1 E, & B. 665;
Nominat Damaces. mn)

Sec. 7. Cases in which absence of loss destroys right of action.

A distinction, however, must be taken here between what may be
called absolute and relative rights. .A man has an absolute right to
have a promise performed, or to keep his estate inviolate ; and he

Nominal damages are always proper
when a breach of contract or of duty
is made out and the extent of the
injury is not shown, whether the
duty arises under a contract or by
operation of law. Bagby v. Harris,
9 Ala. 173; Brown v. Emerson, 18
Mo. 103. Thus, if an action is
brought for the non-delivery of prop-
erty, and after suit, but before ver-
dict, it is delivered to and accepted
by the plaintiff, his right of action is
not destroyed by such acceptance, but
he is still entitled to a judgment for
nominal damages. Conroy v. Flint,
5 Cal. 327. For the breach of any
valid contract, although no damage
results from such breach, nominal
damages are recoverable. Clinton v.
Mercer, 3 Murph. (N. C.) 119; Hagan
v. Riley, 13 Gray (Mass.), 515; Conger
v. Weaver, 20 N. Y. 140; Mecklem v.
Blake, 22 Wis. 495. And so, generally,
where a mere breach of a right ora
neglect of duty is shown, nominal
damages only are recoverable. Thus,
in Pond v. Merrifield, 12 Cush. (Mass.)
181, A. contracted with M. to erect
a building for him within a certain
time and according to certain agreed
plans and specifications; P. advanced
money to M. for the purpose of com-
pleting the building, the loan being
secured by a mortgage upon the build-
ing, and also took a penal bond from
M. to complete said building by a cer-
tain time and according to the con-
tract. The work was not done exactly
according to the time or terms of the
contract, and P., the mortgagee, was
compelled to pay extra insurance on
the building as a consequence of such
failure, but the extra work of M. upon
the building increased the value of P.’s
security to an amount more than equal

Harrop v. Hirst, L. R., 4 Ex. 43; 38
L. J. Ex. 1; Medway Navigation Co.
v. Earl of Romney, 30 L. J. OC. P.
286; 9C. B. (N. 8.) 575; Claxton v.
Claxton, 7Ir. Rep. C. L. 23. Soin
an action against a railway company

to all the deficiencies and delay in not
exactly complying with the contract,
including the item of extra insurance.
It was held that although P. had sus-
tained no actual damage from the
breach, yet he was entitled to recover
nominal damages, and such is the rule
in all cases where a breach of contract
is shown, even though no damage re-
sultstherefrom. Hagan v. Riley, ante;
Freese v, Crary, 29 Ind. 525. And
where a breach is established, but no
special damages are shown, nominal
damages are recoverable because of
the breach. French v. Bent, 43 N. H.
448; Worth v. Edmonds, 52 Barb.(N-Y.)
40. So where in an action for a breach
of an agreement, for an exchange of
farms, the plaintiff failed to prove any
special damage, the court held that he
was nevertheless entitled to recover
nominal damages because of the
breach. Freese v. Crary, 29 Ind. 524.
See, also, Steer v. Crowley, 14 C. B.
(N. 8.) 337. Where a dock warrant
for brandy was deposited with the de-
fendant as security for a loan under
an agreement, that if it was not repaid
by a certain day, the brandy should be
forfeited, and the defendant sold it
the day before the time for the repay-
ment of the loan expired, it appearing
that the plaintiff did not intend to re-
deem it, it was held that he could only
recover nominal damages. Johnson 2.
Stear, 15 C. B. (N. S.) 330. So, in an
action for a breach of covenant of sei-
zin, where the plaintiff has entered
and held possession of the land under
the deed without ouster of eviction by
paramount title and without other
actual injury in consequence of the
breach, he can only recover nominal
damages. Mecklem v. Blake, 22 Wis.
495; Noonan v. Illsley, 22 id. 27;

for non-fulfillment of an agreement to
build accommodation works. Brown
v. 8. & D. Ry. Co., 34 L. J. Ex.
152. See post, as to injuries to ease-
ments, p. 895, ¢f seg.
10

Nommat Damagces.

may sue and obtain nominal damages for an infringement of this
right, although its maintenance is no benefit to him, and its viola-
tion no injury. But there are other rights which are merely rela-

Moseley v. Hunter, 15 Mo. 322; Brady
v. Spurck, 27 Ill. 478; Reed v. Hamil-
ton, 18 Ind. 476; Hacker v. Blake, 17
id. 97.

In an action to recover for personal
services, if actual services are shown
to have been rendered for which pay-
ment has not been made, even though
their value is not shown, yet the plain-
tiff is entitled to recover nominal
damages. Owen». O'Reilly, 20 Mo.
603. See, also, Wilson v. Barnes, 13
B. Monr. (Ky.) 880; Probate Ct. ».
Slason, 23 Vt. 306; Cox ». Hill, 6 Md.
274; Goulding v. Hewitt, 2 Hill (N.
Y.), 644.

In an action of trover, if, subse-
quent to the bringing of the ac-
tion, the plaintiff receives the prop-
erty back, he can only recover nomi-
nal damages, especially if the property
has not been injured by the defendant.
Robinson v. Barrows, 48 Me. 186.

For the breach of a statutory or
common-law duty nominal damages
are recoverable, although no actual
damage results, as, where a sheriff
fails to return process, and it is shown
that the debtor is insolvent, and
nothing could have been recovered
from him. Hamilton v. Ward, 4 Tex.
356 ; Lawrence ». Rice, 12 Metc. (Mass.)
585; Laflin v. Willard, 16 Pick.
(Mass.) 64; Mickles v. Hart, 1 Den.
(N. Y.) 548; Glezen v. Rood, 2 Metc.
(Mass.) 490; Bruce v. Pettingill, 12
N. H. 341. Prima facie, the sheriff
is liable for the whole debt, but he
may exonerate himself therefrom by
showing that the debtor was insolvent,
etc. Danforth »v. Pratt, 9 Cush.
(Mass.) 318; Pardee v. Robertson, 6
Hill (N. Y.), 550. But in Vermont
he has been held chargeable for the
whole debt, for a failure to arrest the
debtor, and cannot mitigate the dam-
ages by showing the debtor’s insolv-
ency (Goodrich »v. Starr, 18 Vt. 227;
Wheeler ». Pettes, 21 id. 398), or that
the debtor has become a certificated
bankrupt. Selfridge v. Lithgow, 2
Mass. 374.

In an action against a carrier for a
breach or neglect of his duty to trans-

port, etc., nominal damages are re-
coverable upon proof of such breach,
although no special damages are
shown. Southern R. R. Co. v. Ken-
drick, 40 Miss. 374. And, generally,
where the violation of a legal right is
established, nominal damages at least
may be recovered, even though no
special damage is shown. Brown »v.
Emerson, 18 Mo. 103; Pond 2. Merri-
field, 12 Cush. (Mass.) 181; French 2.
Bent, 43 N. H. 448. But it by no
means follows that the jury are con-
fined to nominal damages because no
special damages are shown, but where
there is any evidence of actual dam-
age, or any data from which actual
damage may be inferred or estimated,
they may find it. Burkett o. Lanata,
15 La. Ann. 337,

Thus, in an action against a railroad
company for wrongfully expelling a
passenger from a train, substantial
damages may be recovered, although
no pecuniary loss or actual injury to
his person is shown. Chicago, etc., R.
R. Co. v. Flagg, 43 Ill. 364. See, also,
Heichew v, Hamilton, 4 Green (Iowa),
317.

In actions in which the plaintiff
shows himself entitled to nominal
damages, a nonsuit should be denied.
Quin v. Moore, 15 N. Y. 432. But if
the jury fail to find nominal damages,
a new trial will not be granted; Jen-
nings v. Loring, 5 Ind. 250; Branting-
ham », Fay, 1 Johns. Cas. (N.Y.) 255;
unless some right of the plaintiff of
real value will be sacrificed.

But where the plaintiff will not lose,
and the defendant will acquire no
rights by the act, the mazim de mini-
mis, etc. is applied, where the injury
complained of is so small as to be en-
titled to no consideration. This was
well illustrated in Paul v. Slason, 22
Vt. 231, where it was held that an of-
ficerwho had attached a quantity of hay,
straw, etc., and used a pitchfork be-
longing to the debtor in removing the
same, but who did not injure the fork,
and after the removal of the hay, etc.,
left the fork where he found it, would
not be held liable for the use of the
Nominat Damages. 11

tive to a particular benefit which the plaintiff is to reap from their
-enjoyment. The right and the benefit are co-extensive; and if the
benefit is negatived the right ceases. An instance of this nature is .
the right which every man has to the services of a public officer.
*It is the duty of a sheriff to make a true return to a writ 4
directed to him, and to arrest a debtor on mesne process. ue)
But this duty is only imposed upon him for the benefit of the
creditor ; and if he can absolutely negative the possibility of any
advantage accruing to the latter from the performance of his duty,
the plaintiff will not even be entitled to nominal damages.’ So
in the case of an attorney. His employer has a right to his best
services, and may sue him for negligence ; but if the attorney can
prove affirmatively that even his diligence would have been in-

effectual, it is a bar to the action.’
And so under the ballot act, 1872, damages for breach of duty on

fork. This maxim has been applied
to prevent the giving of damages in
case of an escape, where the prisoner
returned to the sheriff’s custody before
action brought, or any damages had
been sustained therefrom. Williams
v. Mostyn, 4 M. & W. 145. So, not even
nominal damages can be recovered,
for an injury resulting from the doing
of a lawful act by another; Lasala v.
Holbrook, 4 Paige’s Ch. (N. Y.) 169;
but when the act is unlawful, and in-
fringes the rights of another, nominal

1 Wylie v. Birch, 4 Q. B. 566;
Williams v. Mostyn, 4 M. & W. 145;
Stimson v. Farnham, L. R, 7 Q. B.
175; 41 L. J. Q. B. 52. See post, p.
409, et seg. In this country the rule
is generally otherwise, and, while in
most of the-States the sheriff may ex-
onerate himself from ‘liability for the
whole debt, by proof of, the insolvency
or bankruptcy of the debtor, yet he
cannot escape liability for nominal
damages. Patterson v. Westervelt,
17 Wend. (N. Y.) 543; Pardee v. Rob-
ertson, 6 Hill (N. Y.), 550; Ledyard
v. Jones, 7 N. Y. 550. In Connecticut
nominal damages are recoverable, al-
though the plaintiff has suffered
nothing by the officer’s neglect. Pal-
mer v. Gallup, 16 Conn. 555. See,
also, West v. Rice, 9 Metc. (Mass.) 564.

-upon him.

damages must be given although the
‘damages are so small as not to be sus-
ceptible of estimation; Wright v.
Stowe, 4 Jones’ (N. C.) Law, 516; or,
even though no actual damages resulted;
Stowell v. Lincoln, 11 Gray (Mass.),
434; Bassett v. Salisbury Manuf. Co.
28 N. H. 188; Munroe v. Gates, 48 Me.
463; as, in actions for flowing lands;
Monroe v. Stickney, 48 Me. 462; or
other injuries that, if not prevented,
must ultimately ripen into a right.
Champion v. Vincent, 20 Tex. 811.

In Vermont he is not permitted to
prove the debtor’s insolvency or in-
ability to pay. Goodrich v. Starr,
18 Vt. 227.

In Arkansas, in an action for not
levying an execution, the plaintiff is
required to allege and prove that the
defendant had property on which the
levy might have been made. State v.
Kirby, 6 Ark. 453. In Georgia insol-
vency: may be shown in mitigation.
Crawford v. Andrews, 6 Ga. 244. In
Oregon, as in New York and Massa-
chusetts, it is prima facie presumed
that the plaintiff lost his whole debt
by the sheriff’s neglect, but he’ may
rebut this by proof, and the burden is
Moore v. Floyd, 4 Ore-
gon, 101. See post, p. 200.

2 Godefroy v. Jay, 7 Bing. 413.
12 Noman Damages.

the part of the presiding officer, whereby voting papers were im-
properly marked, and thereby became useless, can only be recovered
by a person who has been injured by such a breach of duty. But
where the injury and the breach of duty are established, the action
lies without proof of either malice or negligence.’

Sec. 8. Damages not necessarily nominal where no actual injury.

Setting aside this exceptional class of cases, it may, however, be
broadly stated that every infringement of a right involves a clarm
to nominal damages, though all actual damage is disproved.’
And, accordingly, in a suit for general average, in which a nonsuit
was taken, because the jury were about to give a verdict for the
defendant on the ground that they could not ascertain that any
specific sum was the proportion due to the plaintiff, the court
ordered a verdict to be entered for the plaintiff, with 6d damages.*
It by no means follows, however, that in every such case only nom-
inal damages are recoverable ; this will be so when not only actual
but contingent injury is negatived. But where there may be an
imjury, either existing at present, though unascertained, or to arise
hereafter, and for which no fresh action could be brought,

[*7]

' Pickering v. James, L. R.,8 C.
P. 489; 42 L. J. C. P. 217.

2In Jewett v. Whitney, 43 Me.
242, the defendant wrongfully co-op-
erated with the plaintiff's tenants in
pulling down an old, and erecting a
new mill on the premises. It was
shown that the profits of the old mill
would not exceed the cost of repairs.
The court held that no more than
nominal damages could be recovered.
In French v. Bent, 43 N. H. 448, the
defendant contracted to sell certain
lands to the plaintiff, upon payment
of $1,700, and reserving the wood
upon a certain part of the premises.
The. plaintiff covenanted that in part
payment of the purchase-money he
would cut and carry the wood for the
defendant, as stated in the contract.
The defendant refused to permit him
to enter to cut the wood, and, in an
action for the breach of the implied
covenant to permit him to do so, it ap-

*substantial damages may be given at once.
stance, in an action against a banker for not paying his cus-

As, for in-

pearing that the plaintiff had not per-
formed the other condition precedent
to a conveyance, it was held that he
could only recover nominal damages.
See, also, Mecklem v. Blake, 22 Wis.
495; Conger v. Weaver, 20 N. Y. 140;
McAneany v. Jewett, 10 Allen (Mass.),
151; Ledbetter v. Morris, 3 Jones’
(N. C.) L. 548; Owen v. O'Reilly, 20
Mo. 603; Brown v. Emerson, 18 id.
103; Bond v, Hilton, 2 Jones’ (N. C.)
L. 149; Dye v. Mann, 10 Mich. 291;
Dow v. Humbert, 91 U. 8. 294.

3 Feize v. Thompson, 1 Taunt. 121.
Where, however, in an action on an
account stated, the fact of an account
having been stated was proved, but
the only evidence as to its amount was
excluded, it was held by the court of
Queen’s Bench (ERLE, J., contra), that
the plaintiff must be nonsuited, on the
ground that there cannot be a state-
ment of an account without an item
settled. Lane v. Hill, 18 Q. B. 252.
Nominat Damages. 13

tomer’s check ;* or on a covenant to pay off incumbrances,’ or a
sum of money for which plaintiff was jointly liable with defend-
ant to a third party.

Sec. 9. Cases where damage is of the essence of the action.

The above cases must all be distinguished from those in which
the existence of an injury is necessary to constitute the infringement
of aright. There damage is an essential element in the right of
action, and not merely a consequence flowing from it. or instance,
every man has a right to deal as he pleases with his own property,
provided his doing so does not cause an injury to the property of
another. The moment the injury follows, the right of another is
invaded, and that which was innocent becomes wrongful. A man
has a right to dig, or to build, or to carry on any manufacture he
likes, upon his own land. But if by digging he lets down the land
or buildings of his neighbor, which have a right to support, or if by
building he darkens windows which have acquired a right to light,
or if by his manufacture he creates an appreciable nuisance to those

around him, his act becomes wrongful.*

Sec. 10. Damages in debt.

Damages in debt are in general merely nominal for its detention,
and where the plaintiff has actually received payment of the debt,
he cannot afterward commence an action for these damages.°

1 Rolin v. Steward, 14 C. B. 595;
Larios v. Gurety, L. R., 5 P. C. 346.

® Lethbridge v. Mytton, 2 B. & Ad.
772.

*Loosemoore v. Radford, 9 M. &
W. 657. This was held to be the rule
in Chicago, etc., R. R. Co. v. Flagg, 43
Ill. 364, where a person was wrongfully
expelled from the defendant’s cars,
although he sustained no pecuniary
loss or actual injury. The court held
that the jury might consider the an-
noyance and insult to which he was
subjected, and give such damages as
in view of the circumstances they
thought he ought to have. See, also,
Burkett v. Lanata, 15 La. Ann. 337;
Lawless v. Collier, 19 Mo. 480; Allen
v. Conrad, 51 Penn. St. 487. So in
an action of trespass, where the tres-
pass is malicious, the recovery is not
limited to nominal damages. ‘‘Be-
cause,” says the court, ‘‘no witness

has given an estimate in dollars and
cents * * it does not follow that.
the jury are confined to nominal dam-
ages.” Wampach »v. St. Paul, etc., R.
R. Co., 22 Minn. 34. See, also, Win-
borne v. Bryan, 73 N.C. 47; Glass v.
Garber, 55 Ind. 336. But in an ac-
tion for a breach of contract, if no
actual injury is shown, no more than
nominal damages are recoverable,
Moore v. Anderson, 30 Tex. 224.

4 Backhouse v. Bonomi, 9 H. L Cases,
503; 34 L. J. Q. B. 181; Tapling v.
Jones, 11 H. L. Cases, 290; 34 L. J.
C. P. 342; Smith ». Thackerah, L. R.,
10. P. 564; 35 L. J. C. P. 276; St.
Helen’s Smelting Co. v. Tipping, 11
H. L. Cases, 642; 385 L. J. Q. B. 66.
See Wood on Nuisances.

5 Beaumont v. Greathead, 2 C. B.
494. See more fully upon this point,
post, p. 200, et seg.
14 GENERAL Principles or Damage.

We may now proceed to the more important inquiry, as to the
general rules which determine the amount of substantial damages.
It will be convenient to examine in order,

I. The principles upon which damages are given in actions of con-
tract and tort. ,

Il. What damage is inadmissible on the ground of remoteness.

III. The period of time in reference to which damages may be
assessed. ,
[#8] *TV. The cases in which evidence may be given to reduce

damages. ,

Sec. 11. Damages not a complete compensation.

The theoretical idea of damages is, that they are to be a compen-
sation and satisfaction for the injury sustained.’ Practically, how-
ever, there can hardly ever be a case in which they are com-
pletely so.

Take the simplest instance, viz., the non-payment of a debt. Put
out of the question every element of mental suffering caused by the
delay. There may be a clear amount of pecuniary loss flowing in
the most direct manner from it. The creditor may become insolvent,
and be permanently ruined. He may have to borrow money at an
extravagant rate of interest. Even if nothing of the sort happens,
still his taxed costs of suit never repay him for the amount he has
expended in the action; for none of this, however, can he be com-
pensated. The amount of the debt, with interest, and taxed costs is
all he can recover. And so if the defendant’s negligence cause him
the loss of a limb. The diminution of his future enjoyment of life
can, of course, never be made up to him by money; but the injury
may even make it utterly impossible for him to continue his pro-
fession. Yet the jury could not in such a case award a successful
surgeon such a sum as would purchase an annuity equal to his earn-
ings.

Sec. 12. Rule in actions of contracts.

In the case of contract the measure of damages is much more
strictly confined than in case of tort. As a general rule, the pri-
mary and immediate result of the breach of vontract can alone be

12 Bl. Com. 438.
Generrat Privciptes or Damage. "15

looked to. Hence, in the case of non-payment of money, no matter
what the amount of inconvenience sustained by the plaintiff, the
measure of damages is the interest of the money only.’ So where
the contract is to deliver goods, replace stock, or convey an estate,
the profit which the plaintiff might have made by the resale of the
matter in question cannot in general be taken into account ; nor the
loss which he has suffered from the fact of his ulterior arrangements,
made in expectation of the fulfillment of the bargain being frustrated.
The principle of all these cases seems to *be, that, in matter of [#9]
contract, the damages to which a party is liable for its breach

ought to be in proportion to the benefit he is to receive from its per-
formance.’ Now this benefit, the consideration for his promise, is

1 Per Wins, J., Fletcher v. Tayleur,
17 C. B. 29; Per Boviu1, C. J., Brit-
ish Columbia Saw Mill Co. v. Nettle-
ship, L. R., 3 C. P. 506; 37 L. J.
C. P. 240. See, also, Duckworth
v, Ewart, 2H. & C. 129; 838 L. J. Ex.
24; and Prehn v. Royal Bank of Liv-
erpool, post, p. 17.

> Except in special cases, the dam-
ages to which a party is entitled for
a breach of any species of contract is
his actual loss resulting as a natural
sequence from the breach. Take the
case of a contract for the delivery of
ordinary merchandise, to be delivered
at a certain place, in a certain time,
and at acertain price, the amount of
damage that can be recovered, is the
difference betwecn the contract price and
the market price of the same class of
goods at the time and place of delivery ;
because, in the absence of special cir-
cumstances (see note 1, p. 10), this
makes the plaintiff whole. That is, it
enables him to purchase the same class
of goods without any pecuniary loss.
Benton v. Fay, 64 Ill. 417. See, also,
McKenney v. Haines, 63 Me. 74; Lob-
dell v. Stowell, 51. N. Y. 70; Pinker-
ton v, Man. & L. R. R., 42 N. H. 424;
White v. Arleth, 1 Bond (U.8.C. C.),
819; McAroy v. Wright, 25 Ind. 22;
Cole v. Ross, 9B. Monr. (Ky.) 393;
Foley v. Bell, 6 La. Ann. 760.

This rule, however, does not apply
where an identical article is bought
for a specific purpose. Thus, where
the plaintiff selected a planing ma-
chine with reference to its weight and

finish, to be delivered at a certain time,
and, having fitted up the shafting and
necessary appendages, the defendant
refused to deliver it, but offered him
another, it was held that the measure
of damages was what would be a fair
rental value for the use of the build-
ing and machinery if in running order,
while they lay idle in consequence of
the defendant’s neglect to deliver not
longer than was reasonably necessary
for the plaintiff to supply himself with
a like machine after such refusal, and
that nothing could be recovered. for
probable profits, In this case, rent for
thirty-five days was allowed. Benton
v. Fay, 64 Ill. 417; Griffin v. Colver,
16 N. Y. 489. In Singer o.. Farns-
worth, 2 Ind. 597, the defendant con-
tracted to furnish the plaintiff with a
certain machine for $100, and until it
was constructed was to let the plain-
tiff have a machine, then finished, to
use. He delayed furnishing the fin-
ished machine for the plaintiff's use
for three months, and it was held that
the plaintiff was entitled to recover
the value of the use of such machine
for that period. On the breach of a
contract to pay, as distinguished from
a contract to indemnify, the amount
which would have been recovered if
the contract had been observed is
the measure of damages. Wicker 2.
Hoppock, 6 Wall. (U. 8.) 94.

When property is sold to be deliv-
ered in the future, and no special time
is agreed upon, and no demand is
shown, the bringing of an action for
16

GeneraL Princretes or Damages.

always measured by the primary and intrinsic worth of the thing to
be given for it, not by the ultimate profit which the party receiv-

ing it hopes to make when he has got it.

-the breach of the contract will be con-
sidered as the demand, and the value
of the article at the time when the
action is commenced with interest, is
the measure of damages. Davis v.
Richardson, 1 Bay (8. C.), 105. And
where the contract does not definitely
fix the date of delivery, but provides
for a delivery about the 1st of May, or
any other time, the delivery must be
made within a reasonable time after
the day named. Thus in Kipp v. Wiles,
3 Sandf. (N. Y. Sup. Ct.) 585, A
agreed to deliver a quantity of oats to
B ‘on or about the 1st of Novem-
ber,” and there was a total failure to
deliver, and a notice was given by a
person claiming to be A’s attorney,
before the time, that A did not intend
to deliver, it was held, that as A had
the liberty to deliver the oats within a
reasonable time after the 1st of Novem-
ber, and B would have been bound to re-
ceive them, which question of reason-
able time was to be left to the jury, the
measure of damages would be the dif-
ference of price within such reason-
able time between the contract .and
market prices, and that the notice of
the attorney did not affect A’s liabil-
ity.”

In McAroy v.. Wright, 25 Ind. 22,
in a suit upon a contract of sale of
tobacco to be manufactured according
toasample, it appeared that the to-
bacco delivered was inferior and dam-
aged, and was fraudulently packed in
boxes made of green lumber, whereby
it became unsalable, it was held, that
the plaintiff's measure of damages was
the actual loss sustained which would
be ascertained by .deducting the
market value of the tobacco deliv-
ered, at the time of the delivery,
from the market value of that which
was contracted for, to which the jury
were at liberty to add something by
way of punishment for the deceit.

The measure of damages for a fail-
ure to deliver lumber at a time fixed
by contract is the difference between
the contract price and the market
price at the appointed time. Zebner
v, Dale, 25 Ind, 433,

A bottle of landanum may

And, generally, the difference be-
tween the value of the property at the
time and place of delivery, and the
contract price, affords the measure of
recovery. Enders v. Board of Public
Works, 1 Gratt. (Va.) 364; Humph-
reysville, etc., Co. v. Vermont, etc.,
Co., 88 Vt. 92; Worthen v. Wilmot,
80 id. 555; Hill v. Smith, 32 id. 433;
Bickell v. Colton, 41 Miss. 368; To-
bin v. Post, 8 Cal. 373; Havemeyer v.
Cunningham, 35 Barb. (N. Y.) 515;
Phelps v. McGee, 18 Ill. 155; Noonan
v. Iilsley, 17 Wis. 314.

If there were no sales of that species
of property on the day fixed for deliv-
ery, recourse may be had to sales made
within a reasonable time before and
after that day. Dana v. Fiedler, 12
N. Y. 40.

In a suit against a bank for refusing
to deliver certificates of stock sub-
scribed and paid for, the measure of
damages is the value of the stock, or
the highest price in market at any time
after demand and refusal to permit a

-transfer and issue scrip to the pur-

chaser. Arnold v. Suffolk Bank, 27
Barb. ‘(N. Y.) 424; Bank of Montgom-
ery v. Reese, 26 Penn. St. 148.

Upon the main point, see Shepherd
v. Hampton, 3 Wheat. (U. 8.) 200;
Northrup v. Cook, 39 Mo. 208; Shaw
v. Nudd, 8 Pick. (Mass.) 9; Bartlett
v. Blanchard, 138 Gray (Mass.), 429;
Zehner v. Dale, 25 Ind. 433; Berry 2.
Dwinel, 44 Me. 255. If the purchase-
price has been paid, the measure of
damage, where the delivery was not
made in time, but subsequently, the
jury may, even without proof of special
damage, give interest on the price paid
from the time when delivery should
have been made and the time when it
actually was made. Edwards v. San-
born, 6 Mich. 348.

In Van Wyck v, Allen ét al., 69 N.
Y. 62, the defendant sold the plain-
tiff a quantity of seed purporting to be
Dutch Van Wycklin cabbage, but
which proved wholly unproductive of
cabbage. In an action for damages,
the court held that in the absence of
any showing as to the sort of tillage,
GENERAL Princretus or Damage.

save a man his life, or a seat in a

17

railway carriage may enable him

to make his fortune; but neither is paid for on this footing. The
price is based on the market value of the thing sold. It operates as
a liquidated estimate of the worth of the contract to both parties.
It is obviously unfair, then, that either party should be paid for car-
rying out his bargain on one estimate of its value, and forced to pay

for failing in it on quite a different estimate.

This would be mak-

ing him an insurer of the other party’s profits, without any premium

for undertaking the risk.

Sec. 13. Rule in Hadley v. Baxendale.
The leading case on the subject

the measure of recovery was the fair
value of a crop of cabbage, such as
could have been raised if the seed had
been as represented. But, where the
cost of tillage is shown and a crop, but
of a different kind from that intended
to be raised, the measure of recovery
is the difference between the value of
the crop which might have been
raised if the seed had been as repre-
sented, less the cost of tillage and that
which was in fact raised. Passinger
v. Thornburn, 34 N. Y. 684.

Foucer, J., in the course of his
opinion, says that there is no good rea-
son why the cost of tillage should be
deducted when no crop whatever is
raised. Hesays: ‘“ But if he may re-
cover the value of the crop which
should be, why, when naught is the
product, should the vendee be held to
credit the vendor with the lost labor
and expenses? * * If he, having paid
it out in futile tillage, is not to have
recompense for it, he has lost it once.
And if now he is to deduct it from the
value of the crop which that tillage
should have produced, he has lost it
twice.”

In White v. Miller, 71 N. Y. 118,
which was an action for damages, for
selling to the plaintiff a quantity of an-
other kind of cabbage seed, for Bris-
tol cabbage seed, the court re-affirmed
the doctrine of Passinger v. Thorn-
burn, ante, that the measure of re-
covery in such a case is the difference
between the value of the crop raised,

3

of damages arising from a breach

and the value of such a crop as should
have been raised if the seed had been
Bristol cabbage seed, without interest
See, also, to same effect, Millburn v.
Belloni, 39 N. Y. 53; Randall v. Raper,
E. B. & E. 84; Wolcott v. Mount, 36 N.
J. Law, 262; Flick v. Wetherbee, 20
Wis. 392. ‘Gains prevented, as well
as losses sustained,” says ANDREWS, J.,
in the course of his opinion in White
v. Miller, p. 183, ‘‘may be recovered
as damages for a breach of contract,
where they can be rendered reasona-
bly certain by evidence, and have nat-
urally resulted from the breach.” Mas-
terton v. The Mayor, 7 Hill (N. Y.),
61; Griffin v. Colver, 16 N. Y. 489;
Messmore v. N. Y. Shot, etc., Co., 40
id. 422. In the case first cited, as
a mode of ascertaining the damages,
AnpRews, J., pp. 1338-4, says: ‘‘ The
character of the season, whether favor-
able or unfavorable for production;
the manner in which the plants set
were cultivated; the condition of the
ground; the results observed in the
same vicinity where cabbages were
planted, under similar circumstances;
the market value of Bristol cabbages
when the crop matured; the value of
the crop raised from the defective
seed; these, and other circumstances
may be shown to aid the jury, and
from which they can ascertain approx-
imately the extent of the damages re-
sulting from the loss of a crop of a
peculiar kind.”
18 Generat Princretes or Damace.

of contract is that of Hadley v. Baxendale.’ It arose out of the
following facts:

The plaintiffs were owners of a steam-mill. The shaft was broken
and they gave it to the defendant, a carrier, to take to an engineer,
to serve as a model fora new one. On making the contract, the
defendant’s clerk was informed that the mill was stopped, and that
the shaft must be sent immediately. He delayed its delivery, the
shaft was kept back in consequence; and in an action for breach of
contract, they claimed as specific damages the loss of profits while
the mill was kept idle. It was held that if the carrier had been
made aware that a loss of profits would result from delay on his
part, he would have been answerable. But as it did not appear he
knew that the want of the shaft was the only thing which was keep-
ing the mill idle, he could not be made responsible to such an
extent. The court said, “We think the proper rule in such a case
as the present is this: Where two parties have made a contract
which one of them has broken, the damages which the other party
ought to recewe in respect of such breach of contract should be such

[*10]

as *may fairly and reasonably be considered either arising
naturally, i. e., according to the usual course of things, from

such breach of contract rtself, or such as may reasonably be supposed
to have been in the contemplation of both parties at the time they

made the contract, as the probable

19 Exch. 341, 354; 23 L. J. Ex. 179,
182.

? This is the rule generally adopted
in this country. Brock ». Gale, 14
Fla, 523; Freeman v. Morey, 41 Me.
588; Adams Ex. Co, v. Egbert, 36 Penn.
St. 360; Hamilton 7. McPherson, 28
N. Y. 72; Furlong v. Polleys, 30 Me.
491; Vedder v. Hildreth, 2 Wis. 427;
Harwood v. Tappan, 2 Spears (8. C.),
586. In Moore v. Davis, 49 N. H. 45,
the defendant, who was a tenant of a
certain hotel and livery stable belong-
ing to one Dimell, entered into an
agreement with the plaintiff that he
would vacate the premises and deliver
them up to him if he would purchase
the same, on the first of the following
October. The plaintiff did purchase
the premises, but the defendant did
not deliver the possession thereof to
him until the following December;

result of the breach of it.2 Now

and then, the repairs necessary to be
made rendered the house unfit for oc-
cupation until the following spring.
In an action for a breach of this con-
tract, the court held that the plaintiff
was entitled to recover such damages
as he sustained by reason of being de-
prived of the profitable use of the
premises from the first of October un-
til such time the following spring as
the repairs were reasonably completed.
“Such damages,” says Fosrrr, J.,
“‘were the fair, legal and natural re-
sult of the injury complained of.” Rus-
sell v, Fabyan, 84 N. H. 225; Railroad
Co. v. Aspell, 28 Penn. St, 147; Al-
faro v. Davidson, 40 N. Y. Sup. Ct.
87; Jutte v. Hughes, id. 126; Paine
v. Sherwood, 21 Minn. 225. In Booth
v. Spuyten Duyvil Rolling Mills Co., 60
N. Y. 487, the plaintiff having con-
tracted to sell and deliver toa railroad
GENERAL PrRIncrIeLes oF Damage.

19

if the special circumstances under which the contract was actually
made were communicated by the plaintiffs to the defendant, and
thus known to both parties, the damages resulting from the breach

company a quantity of nails made of
iron with steel caps, contracted with
the defendant to make the same. The
defendant was informed of the pur-
pose for which the caps were wanted.
He failed to furnish the caps, and asa
consequence the plaintiff was unable
to perform his contract. In an action
for damages for the breach of this con-
tract, the court held that, in the ab-
sence of any proof that the price the
plaintiff was to receive was extrava-
gant or exceptional, he was entitled to
recover the profits he would have real-
ized upon his contract with the railroad
company, and that the fact that he did
not inform the defendant of the price
he was to receive did not change the
tule. ‘The damages,” said the court,
‘‘for which a party may recover for a
breach of a contract, are such as natu-
rally and ordinarily flow from the non-
performance. They must be proximate
and certain, or capable of certain ascer-
tainment, and not remote, speculative or
contingent. It is presumed the parties
contemplated the usual and natural
consequences of a breach when the
contract is made; and if the contract is
made with reference to special circum-
stances fixing or affecting the amount of
damnages, such special circumstances are
regarded as within the contemplation of
the parties, and damages may be assessed
accordingly. * * * Fora breach of an
executory contract to sell and deliver
personal property, the measure of dam-
ages is ordinarily the difference be-
tween the contract price and the mar-
ket value of the article at the time
and place of delivery; but if the con-
tract 1s made to enable the plaintiff to per-
form a sub-contract, the terms of which
the defendant knows, he may be held lia-
ble for the difference between the sub-con-
tract price and the principal contract
price. This is upon the ground that
the parties have impliedly fixed the
measure of damages themselves, or
rather, made the contract upon the ba-
sis of a fixed rule by which the dam-
ages may be assessed.” This case may
be said to embody the American doc-
trine upon this topic, and conforms to

the rule to be eliminated from the case
named in the text. But, in Snell 2.
Cottingham, 72 II, 161, it is held that
mere notice to the contractor by the
defendant is not enough, but that he
must in some measure assent to such
rule of damages. Knowledge of the
purpose to which the plaintiff intends to
apply the articles contracted for, etc., is
an important element, and in the ab-
sence of it the damages are restricted
to the difference between the contract
price and the market value at the time
and place of delivery; if there be any.
If, upon the failure of the defendant
under such circumstances to perform
his contract, the plaintiff is unable to
procure the articles at the time and
place of delivery, and is compelled to
manufacture the same by manual la-
bor, or otherwise, at a cost much
greater than the contract price, and
the course pursued by bim is the only
way in which he can obtain the arti-
cles, or is the ordinary and usual, or
a reasonable and prudent way of ob-
taining them, the difference between
the contract price and the higher cost
of the articles thus obtained, may be
regarded as the natural consequence of
the breach, and recovered as damages.
Thus, in Paine v, Sherwood, 21 Minn.
225, the defendant entered into a con-
tract with the plaintiff to supply him
within a certain time with certain
bridge timber, to be used by the plain-
tiff in constructing a bridge which he
had entered into a contract to build,
within a certain time. The defendant
failed to perform his contract, and the
plaintiff being unable to procure such
timber as he had contracted with thé
defendant to manufacture, at the time
and place of delivery, was compelled
to manufacture the same by manual
labor at a much greater cost than that
which the defendant had contracted
to manufacture it for. The court
adopted the rule just stated, but added,
If the course pursued by the plaintiff
was not the ordinary and usual, and
was not a reasonable or prudent way,
were it not for the engagement into
which he had entered with a third
20 GENERAL PrincieLes oF DaMaGe.

of such a contract which they would reasonably contemplate, would
be the amount of injury which would ordinarily follow from a
breach of contract under these special circumstances so known and
communicated. But, on the other hand, if these special circum-
stances were wholly unknown to the party breaking the contract, he
at most could only be supposed to have had in his contemplation the
amount of injury which would arise generally, and in the great
multitude of cases, not affected by any special circumstances from
such a breach of contract. For had the special circumstances been
known, the parties might have specially provided for the breach of
contract by special terms as to the damages in that case; and of this
advantage it would be very unjust to deprive them. The above
principles are those by which we think the jury ought to be guided

in estimating the damages arising out of any breach of contract.”

Sec. 14. Three rules in Hadley v. Baxendale.

The rule laid down in Hadley v. Baxendale was intended to settle
the law,’ and it has been accepted both in England and America.’

party for the completion, within a
limited time, of the bridges for which
the timber was contracted to be fur-
nished, the plaintiff cannot recover the
increased cost he has been obliged
to incur in order to fulfill such engage-
ment, unless the nature of his engagement
was known to the defendant at the time
when the contract was made. But, if
the nature of the plaintiff’s engage-
ment to complete the bridge for which
the timber was to be furnished was
made known to the defendant at the
time of making the contract, the plain-
tiff may recover the difference between
the contract price and the higher cost
at which — acting in good faith and
with reasonable diligence and pru-
dence — he was obliged to obtain the
kind and quality of timber contracted
for, in order to fulfill his engagement,
for these damages may reasonably be
supposed to have been contemplated by

1 See per Pottocgr, C. B., Wilson 2.
Newport Dock Co., L. R., 1 Ex. 189;
85 L. J. Ex. 103.

2 The leading case in America is
Griffin v. Colver, 16 N. Y. 489, where

the parties when making the contract, as
the probable result of the breach.”

The fact that a loss-ensues is not
sufficient, there must be a loss that is the
necessary and natural result of the
breach. Thus, in Friedland v. McNiel, *
33 Mich. 40, the defendant entered
into a contract to do the mason work
on a church and to have it completed
by a certain time. He did not com-
plete the work in the time contracted
for, and in an action to recover dam-
ages for the breach, it was held that
recovery could not be had for loss of
pew rent as a part of the damages.
“Such loss,” says the court, ‘‘cannot
be said to be the natural or probuble
result of the delay, since the completion
of the contract does not put the building
an condition for renting the pews.” For
other instances in which this rule has
been applied see Benziger v. Miller, 50
Ala. 206; Benton v. Fay, 64 Ill. 417;
Jamison v. Moon, 43 Miss, 598.

the rule was stated to be that, ‘‘ the
damages must be such as may fairly be
supposed to have entered into the contem-
plation of the parties when they made the
contract — that is, they must be such as
Fist Roe w Haney v. Baxenpaue. 21

It bas been supposed to lay down three rules: First, that damages
which may fairly and reasonably be considered as naturally aris-
ing from a breach of contract, according to the usual course of
things, are always recoverable. Secondly, that damages which
would not arise in the usual course of things from a breach of
contract, but which do arise from circumstances peculiar to the
special case, are not *recoverable unless the special circum [#11]
stances are known to the person who has broken the contract.
Thirdly, that where the special cirewmstances are known, or have
been communicated to the person who breaks the contract, and where
the damage complained of flows naturally from the breach of con-
tract under those special cireumstances, then such special damage
must be supposed to have been contemplated by the parties to the
contract, and is recoverable. A further rule is implied, viz., that
damage which cannot be considered as fairly and naturally arising
Jrom breach of contract under any given circumstances, is not
recoverable, whether those circumstances were or were not known

to the person who is being charged.

Sec. 15. First rule.

Damage arising in the natural course of things.

It may be convenient to examine the cases, as they fall under

these rules.

might naturally be expected to follow its
violation ; and they must be certain, both
in their nature and in respect to the cause
from which they proceed.”

In this case an action was brought
for damages resulting from a breach
of a contract to deliver to the plaintiff
a steam-engine at a specified time, pur-
chased for the purpose of driving cer-
tain machinery. The defendant did
not deliver the engine within the time,
and the court held that the ordinary
rent and hire which could have been
obtained for the machinery during the
period of delay was the measure of
damages; the court observing that
damages based upon a calculation of
profits are recoverable when they are
certain and not dependent upon con-
tingencies. In Laurent v. Vaughn, 30
Vt. 90, the defendant contracted with
the plaintiff to carry a quantity of peas
from Canada to New York, by water,
but, by his own negligence and unne-

First, cases in which the damage complained of arises

cessary delay, was unable to carry
them farther than Burlington during
the same season, on account of the
freezing of the lake. The plaintiff then
upon the defendant refusing either
to forward the peas by railroad to
New York, or to deliver them to the
plaintiff, except upon the payment of
the freight, obtained possession of
them by a writ of replevin, and sent
them to Boston fora market, which
was a judicious disposition of them.
It was held that the plaintiff was en-
titled to recover the difference between
the net amount realized for them in
Boston and the net amount they would
have sold for in New York at the time
when they should have arrived there,
if the defendant had performed his
contract.

See Berry v. Dwinel, 44 Me. 255 ;
Belden v. Nicolay, 4E.D.S. (N. Y.
C. P.) 14.
22 GeyeraL Princretes oF DaMmaae.

in the usual course of things. The simplest illustration of this rule
is the every day case of non-payment of money, or non-delivery of
goods. In the former case, the party either loses the benefit of his
money, or has to provide himself with money elsewhere. In either
alternative the damage suffered is the usual interest. In the latter
case, the party must provide goods somewhere else, if possible.
The damage is the difference of price, if he can do so, or the loss he
has incurred, if he cannot. Other cases, however, are of a less
simple character, though falling under the same rule. For instance
in some cases an article possesses a varying value, being more sal-
able at some seasons and less salable at others. Skates and furs
are more salable at the beginning of winter. Muslins and silks at
the beginning of summer. This difference in value would be prob-
ably taken into consideration in estimating a breach of contract in
respect to such articles.

Sec. 16. Value of article dependent on season. Fletcher v. Tayleur.

The case of Fletcher v. Tayleur* is an instance of this class.
There the defendant had contracted to build a ship, which was to be
delivered to the plaintiff on the 1st of August, 1854. It was not
delivered till March, 1855. The vessel was intended by the plain-
tiffs,—and from the nature of her fittings the defendants must have
known the fact,—for a passenger ship in the Australian trade. Evi-
dence was given that freights to Australia were very high in July,
[12] August and September, but fell *in October, and continued low

till May, when the vessel sailed; and that had she been deliv-
ered on the day named, she could have earned 2,750/. more than she
did. On the other hand it was shown, that the plaintiffs would have
extended the time for delivery till the Ist October if the defendants
would have bound themselves to that day under a demurrage (which,
however, was refused) ; and that they had stated as their reason for
wishing to have the ship then, “ that after that time the days would
be shortening so fast that they would be seriously inconvenienced
and prejudiced in fitting the vessel out.” The judge charged in
the words of Hadley v. Baxendale, and the jury found a verdict of
2,7507. An attempt was made to set aside the verdict for excess of
damages, on the ground that if the plaintiffs offer had been com-

117 C. B. 21; 25L. 5. C. P. 65.
First Rute iw Hapiey v. BaxEnpA.e. 23

plied with, the loss of freight would have been suffered; and that
the damages should be measured rather by the species of loss which
they had themselves pointed out, than by that which they after-
ward set up. The rule was refused.

In this case the primary object of the ship was to earn freight by
carrying passengers. The defendant was to be paid the value of
such a ship. Any delay in its completion would clearly subject it
to a diminution in value by a fall of freight. The measure of that
diminution in value was accurately expressed by the difference in
profits obtained on the first voyage.’

Sec. 17. Damages for loss of season. Wilson v. Lancashire, etc., Railway.

Similarly in Wilson v. Lancashire and Yorkshire Railway Oo.,”
the plaintiff, a cap manufacturer at Cockermouth, bought cloth at
Huddersfield, for the purpose of making it up into caps, which he
was in the habit of selling through the country by travelers. The
cloth was delivered to the defendants for carriage to Cockermouth,
and was delayed by them so long that the plaintiff did not receive
it in time to manufacture it into caps, the season having passed before

he could execute the orders obtained by his travelers.

1 This rule is well illustrated in Hex-
ter v. Knox, 63 N. Y. 561. In that
case the plaintiff leased of the de-
fendant a building in New York city,
known as the Prescott House, and cer-
tain premises adjoining, upon Spring
street, the defendant covenanting to
tear down the old building and erect a
new one of a certain style and di-
mension on the adjoining premises, to
be used in connection with the hotel,
the new building to be completed and
the plaintiff put in possession by a
specified time. The plaintiff was then
occupying the hotel and a building
upon a portion of the adjoining prem-
ises, under a former lease. He re-
moved the furniture from the rooms
in the last-named building, and stored
it while the new building was being
erected. The defendant failed to com-
plete the building within the time
specified, and, in an action to recover
damages therefor, it was held that the
plaintiff was entitled to recover the
rental value of the use of the rooms,
for hotel purposes, in the new build-

He claimed

ing, during the time he was deprived
of the use thereof by the defendant’s
default, and as to such of the rooms
as he had the furniture for, he was
entitled to recover the value of their
use as furnished rooms, In Brown »,
Foster, 51 Penn. St. 165, the de-
fendant contracted to ‘put certain
machinery into a steamboat, within
a certain stipulated time, which
he failed to perform, and even when
he did complete the work the ma-
chinery was defective, the court
held that the measure of damages for
the delay was the ordinary rental
value of such a boat while the de-
fendant was in default, and that as to
the defects in the machinery, the meas-
ure of damages was the cost of repair-
ing or replacing the machinery so to
make it what it should have been under
the contract, and the ordinary hire of
such a boat during the time necessarily
occupied in making such repairs or
alterations.

290. B. (N. 8.) 682; 30 L. J. C. P.
232.
24 GeneraL Prinoretes or Damace.

damages for the loss of his season. It was held that he was entitled
to them, assuming the loss of the season to mean not the loss of the
profits which he would have made by the sale of the caps, but the
[*13] diminished value *of the cloth to him by reason of its de-

livery at the end of the season instead of at the beginning.’

Sec. 18. Fall in market value of goods. Collard v. 8. BH. Railway Co.

On the same principle, a fall in the market value of goods, be-
tween the date at which they should have been, and the date at
which they were delivered, has been held recoverable, although the
fall was what might be termed accidental, and in no way arising
from the nature of the article. In Collard v. South Eastern Rail-
way Company,” hops were intrusted to the defendants for carriage.

1 The measure of compensation for
a failure to deliver according to con-
tract, is the value of the goods at the

lace of destination at the time they
should have been delivered, and in the
condition in which the vendor under-
took to deliver them. Sturgess 2. Bissell,
46 N. Y. 462; Ward v. N. Y., etc. R.
R. Co., 47 id. 29. If the shipper was
to deliver the goods under a contract at
a certain price, the contract price
should govern (Deming ». Grand
Trunk R. R. Co., 48 N. H. 455), other-
wise the market price is the criterion
(IL Cent. R. R. Co., 54 Ill. 59), but
the contract price will not control
when the carrier had no notice that
the shipper had sold the goods to ar-
rive at a certain time. But where
there is no such notice the difference
in value at the port of delivery, be-
tween the time when they should have
been and actually were delivered.
Scott o. Boston, etc., 8. S. Co., 106
Mass. 468. But, when the carrier is
notified of the purpose of the ship-
ment, and that the property is intend-
ed for a certain purpose, he is respon-
sible for the loss which the shipper
sustains from his failure to perform.
Thus, where a railroad company
undertook to transport a steam boiler
for the plaintiff, which he intended to
use in the business of sawing lumber
for the market, and the company
failed to comply with their agree-
ment, it was held that the speculative
profits which might be supposed to

arise, but which were defeated because
of the breach of contract which de-
layed the business, could not be looked
to as an element of damages, but that
the plaintiff could recover his actual
damage resulting from the defendant’s
failure to perform his contract.
Vicksburg, etc., R. R. Co. 0. Rags-
dale, 46 Miss. 458. See, also, Bazin
o. 8.8. Co., 3 Wall. Jr. (U. S&.) 229.

In Cincinnati Chronicle Co. 2.
White Line Transit Co., 1 Cine.
(Ohio) 300, the plaintiff was about to
commence the publication of a news-
paper in Cincinnati, and was waiting
for the machinery to arrive from New
York, where it had been purchased.
The carriers had been notified of these
facts when they contracted to carry
the machinery to Cincinnati in four
days, A part of the machinery was
lost. It was held that the carrier was
liable for the direct and necessary con-
sequences, including wages of men
who were idle for want of the ma-
chinery after the time when it was to
have been delivered, and the cost of
efforts made to recover the machinery,
as well as the cost of replacing that
which was lost, and which could only
be replaced by ordering it from the
manufactory in New York.

°7H. &N. 79; 30 L. J. Ex. 8938;
Jones v. N. Y. R. R. Co., 29 Barb. (N.
Y.) 683; Weston o. Grand Trunk R.
R. Co., 54 Me, 376; Peet v. Chicago,
etc, R. R. Co., 20 Wis. 594;, Med-
bury x N. Y¥., etc, R. R. Co, 26
Frest Rute iw Hapiry v. Baxenpatn. 25

They were delayed and delivered in a partly damaged state through
exposure. The plaintiff dried them, which caused further delay, and
then soldthem. At the time of sale the market price of undamaged
hops had fallen from 18/., their value, when delivered in their dam-
aged state, to 97. A further loss was suffered in consequence of the
actual damage to part of the hops from the damp. It appeared that
only a portion of the hops in each pocket had been injured, and that
this part might have been removed, and filled up with good hops,
or the uninjured part might have been sold separately. But it was
proved that it was the custom to sell hops in their original bags,
these being marked by the Excise, and that any transfer or filling up
would have been looked upon with suspicion. Under these circum-
stances it was held that the defendants were liable, not only to pay
for the depreciation caused by the actual damage to part, but also for
the fall in value of the whole, caused by the delay consequent
on restoring them as far as possible to a marketable condition.
Mart, B., said, ‘‘we are to assume that these hops ought
to have been delivered on a certain day; and further, we
are to assume that by reason of the contract being broken
by the defendants, these hops could not be brought into the
market until a certain other day. It was proved that if they
had been brought to market they would have produced a cer-
tain sum, but that when they were brought to market at a future
day we find the market price had fallen, and the articles had fallen
in value by an amount of 657. If that is not a direct, immediate,
necessary and essential consequence of the breach of contract by the
defendants I cannot understand what is.”

Barb. (N. Y.) 564; Sisson ». Cleve- that he was not entitled to an allow-

land, etc., R. R. Co., 14 Mich. 489;
Briggs v. N. Y. R. RB. Co., 28 Barb.
(N. Y.) 515. If a carrier neglects to
deliver machinery, within the time
stipulated, or within which, in the due
course of business, it should have
been delivered, he is liable for the
value of its use, in the business in
which it was to be employed during
the time of such delay. Priestly ».
Northern Indiana, etc., R. R. Co., 26
Ill. 205. In Bianchard ». Ely, 21
Wend. (N. Y.) 3842, the boat was
completed in time, but owing to de-
fects in its construction, the contractee
lost several trips. The court held

ance for the trips lost, but only for the
expense of supplying the defects to
make it conform to the contract.
Where the parties themselves fix the
yate of damages for delay, their
agreement will control so far as it ap-
plies. Thus, where a freighting con-
tract fixed the rate, with certain de-
ductions for each day’s delay, it was
held that the sum agreed upon must
be deducted from the price agreed to
be paid for freight, and that after the
deductions to be made exceeded the
whole amount of freight money, then
the ordinary rule of damages inter-
vened. Nudd o. Wells, 11 Wis. 407.
26 GeneraL Prinoretes or Damage.

Sec. 18. Selling the test of depreciation.

*In the preceding case, CHANNELL, B., agreed with this
opinion, but thought that the doctrine of Hadley v. Baxendale
did not apply; apparently because the carriers had no notice that the
hops were intended for sale, and the non-damaged parts were as
good as ever if the plaintiff had used them himself. But it is sub-
mitted that value cannot be estimated by two different standards, the
value for use and the value for sale. Still less can a person who has
broken his contract, and thereby reduced the selling value of an
article, be allowed to select some other standard of value which would
be more favorable to himself. Suppose a person hires a horse with
an express agreement not to hunt him, and he does so, and the horse
falls and blemishes his knees, and thereby diminishes his selling
value. Evidence would surely be worthless, if not inadmissible,
which went to show that for actual use he was as good ag before.
The owner has a right to say, the value of my property is dimin-
ished by the only test to which it can be subjected, viz., what it
will fetch in the market.

[*14]

Sec. 20. Same rule in America.

The same rule is also followed in America, where it is neld, “that
where a carrier, from mere negligence or plain violation of duty,
omits to transport merchandise within a reasonable time, and its
market value falls in the meantime, the true rule of damage is the
difference in its value at the time and place it ought to have been
delivered, and the time of its actual delivery.” '

"Ward v. New York Central R. R.
47 N. Y. 29; cited 1P. D. 464. See,
too, Borries ». Hutchinson, 18 C. B.
(N. 8.) 445; 84 L. J. C. P. 169; Sis-
son 2, Cleveland, etc., R. R. Co., 14
Mich. 489; Jonesv. N. Y. R. R. Co,
29 Barb. (N. Y.) 633; Peet ».
Chicago, etc, R. R. Co. 20 Wis.
594; Weston »v. Grand Trunk R. R.
Co., 54 Me. 376 ; New Orleans R. R. Co.
». Moore, 40 Miss. 89; Colvin 2.
Jones, 3 Dana (Ky. ), 576; Reading o.
Donovan, 6 La. Ann. 491; Laurent 2.
Vaughn, 80 Vt. 90. In Cowley ».
Davidson, 13 Minn. 92, an action was
brought for a breach of a contract for
the transportation of a lot of No. 1
wheat from O, to be delivered at M, on

a certain day, or deliver other No. 1in
its stead. The defendant did not per-
form and it was held that the measure
of damages was the difference be-
tween the value of No. 1 wheat at M
on that day and wheat of the same
quality at O, on the same day, with
costs of transportation fromO to M
added, at the contract rate, with in-
terest from that date. In Ogden 2.
Marshall, 8 N. Y. 340, the defendant
refused to perform a contract for the
carriage of corn from New York to
Liverpool, at a certain rate. The
court held that the measure of dam-
ages was the difference between the
agreed price and the price which the
plaintiff was compelled to pay for the
27

First Rutz w Hapiey v. Baxenpaur.

Sec. 21. Does not apply to carriers by sea. The Parana.

In all the cases last referred to the carriage was by land. Ina
very recent case, however, it has been decided that the same princi-
ple does not apply to cases of carriage by sea. An action was
brought in the Admiralty Court by the assignee of goods against a
British ship, to recover damages incurred from an unreasonable
delay in their carriage. Damages being admitted, a reference was
made to the Registrar, assisted by merchants, to find the amount.
He found that a fall in the market value of the goods had taken
place between the time of actual delivery and the time at which
they ought to have been delivered. This amount, however, he re-
fused to grant, saying that it had never been the practice in the
[#15] Court of Admiralty to give *such damages, and though it con-

stantly happened that by accidents, such as collisions, goods
were delayed in their arrival, it never had been the custom to include
in the damages the loss of market. He reported therefore that the plain-
tiff was only entitled to 5 per cent interest on the invoice value of
the goods during the period of delay. On appeal, Sir Roperr Parixr-
more awarded the full damages claimed, on the authority of the
previous cases. But the report of the Registrar was confirmed by
the court of appeal, and that of Sir Roperr Paitimore was reversed.
Mexuisz, L. J., said, “if goods are sent by a carrier to be sold at a
particular market ; if, for instance, beasts are sent by railway to be
sold at Smithfield, or fish is sent to be sold at Billingsgate, and, by
reason of delay on the part of the carrier, they have not arrived in
time for the market, no doubt damage for the loss of market may
be recovered. So, if goods are sent for the purpose of being sold in
a particular season, when they are sold at a higher price than they
are at other times, and if by reason of breach of contract they
do not arrive in time, damages for loss of market may be recovered.
Or if it is known to both parties that the goods will sell at a better

same service. See, also, to the same
effect, Collins v. Baumgardner, 52
Penn. St. 461. The measure of recov-

portation, Atkisson v. Steamboat Cas-
tle Garden, 28 Mo. 124, with interest
from the day when the delivery should
have been made.

ery for a failure to deliver at a certain
place, ona day agreed upon, is the
difference between the value at the
place of shipment and the place of des-
tination, Laurant v. Vaughn, ante, less
the freight and other expenses of trans-

Sherman v. Wells,
28 Barb. (N. Y.) 403; Smith o. N. H.,
etc., R. R. Co., 12 Allen (Mass.), 531;
Spring ». Haskell, 4 id. 112; Cutting
». Grand Trunk R. R. Co., 13 id. 381.
28 GenerAL Princretes or Damaae.

price if they arrive at one time than if they arrive at a later time,
that may be a ground for giving damages for their arriving too late,
and selling for a lower sum.” He then pointed out that the cases
were all cases of carriage by land, and were treated by the courts as
if the goods were consigned for the purpose of immediate sale.
“The difference between cases of that kind and cases of the carriage
of goods for a long distance by sea seems to be very obvious. In
order that damages may be recovered, we must come to two con-
clusions—first, that it was reasonably certain that the goods would
not be sold until they did arrive; and secondly, that it was reason-
ably certain that they would be sold immediately after they arrived,
and that that was known to the carrier at the time when the bills of
lading were signed. It appears to me that nothing could be more
uncertain than either of those two assumptions in this case. Goods
imported by sea may be, and are every day, sold while at sea.” ‘In
this particular case the plaintiff did not sell the goods when they
arrived, for he sold them some months afterward, when a further

fall had taken place in the market. *How can we tell that he
[*16] id flys

would not have done exactly the same thing if the goods
had arrived in time? Therefore, it seems to me, that to give these
damages would be to give speculative damages—to give damages
when we cannot be certain that the plaintiff would not have
suffered just as much if the goods had arrived in time.”

Sec. 22. Damages where goods cannot be replaced.

Where there has been an absolute non-delivery of goods, either by
breach of contract to deliver or to carry, prima facie the loss suffered
is the increase of price, if any, at which similar articles could be pur-
chased in the market. But if they cannot be purchased for want of a
market, their value must be estimated in some other way. If there
has been a contract to resell them, the price at which such contract
was made will be evidence of their value.’ If there has been no
such contract, the market value may be estimated by adding to their
price at the place where they were purchased the costs and charges

1 The Parana, 1 P. D. 452; 45 L. J. S.) 632; Borries ». Hutchinson, 18 C.
Adm. 108, reversed on appeal, 2 P. B. (N. S) 445; 34 L. J.C. P. 169;
D. 118. Godwin 2. Francis, L. R.,5 C. P. 295;

* France v. Gaudet, L. R., 6 Q. B. 39L. J.C. P. 121.

199; 40 L. J.Q. B. 121,90. B. (WN.
Fist Rote mw Hapiry v. BAxenpaur. 29

of getting them to their place of destination, if any such were in-
curred, and the usual importer’s profits.

Sec. 23. Expenses arising from breach of contract.

On the same principle, any increased cost to which a person
is put, from the necessity of doing himself, what he had contracted
that some one else should do for him, is recoverable, if what he does
is the fair and proper thing to do under the circumstances. For in-
stance, if a railway company fail to convey a passenger to the desti-
nation for which he has paid, he may charge them for a special
conveyance, or for hotel charges, rendered necessary by the delay.’
But he will not be justified in taking a special train, merely to save
himself the tedium of waiting for one which would take him to his

‘1 O’Hanlan v. G. W. Ry. Co., 6 B. &
S. 484; 34 L. J.Q. B. 154; Cowley »v.
Davidson, ante.

? Hamlin vo. G. N. Ry. Co.,1 H.&
N. 408; 26 L. J. Ex. 20; per Buack-
BURN, J., Hinde v. Liddell, L. R., 10
Q. B. 268; 44 L. J. Q B. 105.
If a passenger is wrongfully expelled
from a train or steamboat or other con-
veyance, no compeusation for the sub-
sequent hardships and difficulties
caused by a failure to procure other
transportation can be given. Pear-
son v. Duane, 4 Wall. (U. 8.) 605.
But such facts may be given in evi-
dence, but when no special damages
were proved, a verdict of $500 was
held excessive where the plaintiff was
put off the train twelve miles from his
place of destination. Tarbell», Cent.,
etc., R. R. Co., 84 Cal. 616. In Brock
o. Gale, 14 Fla. 523, a dentist brought
an action against a carrier of passen-
gers by steamboat for a loss of bag-
gage, among which was a set of
dentist’s tools, and he claimed to
recover the profits he might have
earned with such tools. Held, too
remote.

In a New York case, Williams 2.
Vanderbilt, 28 N. Y. 217, which was
an action for damages in not carrying
the plaintiff to San Francisco by way
of Nicaraugua, as the defendant had
contracted to do, it was held that the
plaintiff was entitled to recover for
the time lost by him by reason of his
detention on the isthmus, his expenses

while there, and the expenses of his
return to New York, and also the ex-
penses of his sickness so far as they
were occasioned by the defendant’s
negligence or breach of duty.

In an action against a common car-
tier for unreasonable delay in the
transportation of a passenger, plain-
tiff is only entitled (no malice or
fraud being shown) to recover his
actual damages. Evidence of the rate
of wages earned by persons of plain-
tiff’s trade at the place of plaintiff's
destination, during the period of the
delay, is admissible to guide the jury
in fixing the damages. But that rate
of wages is not the measure of dam-
ages. The jury are to consider the
probabilities that plaintiff would have
obtained employment immediately up-
on his arrival, and that it would have
continued during the entire period
covered by the delay. Young 2. The
Pacific Mail S. 8. Co., 1 Cal. 353. And
where a person in a foreign port con-
tracted with the master of a vessel for
a passage to this country, and paid a
part of the passage-money in advance,
but the master failed to fulfill his con-
tract, it was held that the other party
was entitled to recover the sum paid
in advance, the expenses incurred in
awaiting the sailing of another ship,
and the sum paid to the second vessel
fora passage in her. The Zenobia, 1
Abbot’s Adm. R. 80. See, also, Por-
ter vo. The Steamboat New England,
17 Mo. 290.
30 General Princietes or Damage.

journey’s end a little later, and without some special and adequate
object to be gained.’ It is obvious, however, that there might be
[*17] circumstances in which such a course would be *perfectly
justifiable. Take, for instance, the case of a physician going
to attend a patient, or a barrister going to plead a case. And so where
the defendants broke their contract to carry a cargo of coal for the
plaintiff, it was held that they were liable to pay not only the increased
freight, at which he had to hire another vessel, but also the increased
price he had to pay for his coal; the custom of the port being that
coal could not be secured until a ship was ready to take it away.’

Sec. 24. Special damages from non-payment of money.

In a recent case in the court of exchequer the rule was applied in
an action for damages resulting from the non-payment of money
under a special contract to doso. The defendants, bankers at Liver-
pool, undertook to accept the drafts of the plaintiffs’ Alexandria
firm, the plaintiffs undertaking to put them in funds to meet the
bills at maturity, and the defendants receiving one-half per cent for
the accommodation. Bills were accepted under this arrangement,
and the plaintiffs duly provided the defendants with funds. Before
the bills became due the defendants stopped payment, and gave
notice to the plaintiff that they would be unable to meet the bills.
The plaintiffs arranged with another house at Liverpool to take up
the bills, paying two and one-half per cent commission. They were
also obliged to pay to the holders the expenses of protesting the
bills, and incurred expenses in telegraphic communication between
Liverpool and Alexandria. In an action for breach of the contract
to pay the bills out of the funds provided, it was urged on behalf of
the defendants that this was a mere case of non-payment of money,
and that the damages should be limited to the amount of the bills

‘Le Blanche », L. & N. W. Ry.

Co., 1 ©. P. D. 286; 45 L. J. C. Pz
521,

can be recovered as general damages.
Hallock ». Belcher, 42 Barb. (N. Y.)
199; Bristol Co. v. Gridley, 28 Conn.

? Featherstone v, Wilkinson, L. R.,
8 Ex. 122; 42 L. J. Ex. 78. In all
cases of this character, if special
damages result to the plaintiff, they
must be alleged and proved, and must
be shown to have resulted directly
from the breach complained of.
Nothing but damages which naturally
and ordinarily flow from the breach

201; Burrell ». New York, etc., Co.,
14 Mich, 34; Olmstead o. Burke, 25
Ill. 86; Warner v. Bacon, 8 Gray
(Mass.), 397; Hunter v. Stewart, 47
Me. 419; Burnside v. Grand Trunk
R. R. Co., 47 N. H. 554; Hanna o.
Pegg, 1 Blackf. (Ind.) 181; Wilson ».
Dean, 10 Iowa, 482; Teagarden 2.
Hetfield, 11 Ind. 522.
First Rute 1n Haptey v. BaxEenpDAue. 31

and interest. But the court held that the ordinary rule applicable
to damages for non-payment of a debt or bill was not applicable,
and, there being a special contract, the damages reasonably flowing
from its breach might be recovered, and the plaintiffs were there-
fore entitled to the commission which they had paid and the tele-
graphic and notarial expenses. Kutiy, C. B., seems to have con-
sidered the damages as within the contemplation of the parties ; but
Marry, B., protested against this test, as he has done on many
occasions, on the ground that parties, when they make contracts,
contemplate fulfilling them and not breaking *them. There
was a difference of opinion also as to whether the plaintiffs
were entitled to their damages as general or special damage.’

[*18 ]

Sec. 25. Inconvenience arising from breach.

Not only costs, but inconvenience caused by a breach of contract,
may be paid for by damages, provided the inconvenience is substan-
tial and appreciable. Where a railway company set down a man and
his wife and family at a wrong station at night, and they could find
neither conveyance nor hotel, and had to walk several miles in the
rain, this was held to be a ground for substantial damages.” But
the mere breach of a contract will not necessarily involve any thing
beyond merely nominal damages, where the inconvenience caused
is only a matter of vexation and annoyance, incapable of being
stated in a tangible form, or assessed at a money value.’

1Prehn v. Royal Bank of Liver- time and labor involved in reaching

pool, L. R., 5Ex. 92; 39 L. J. Ex.
41. See for another instance of
special damage recovered in a some-
what similar case for’ breach of a con-
tract to meet drafts, Boyd o. Fitt, 14
Ir. Com. L. Rep. 48; Larios o.
Gurety, L. R.,5 P. C. 346.

2 Hobbs v. L. & 8. W. Ry. Co.,
L. B.,10 Q. B. 111; 44 L. J. Q. B.
49, See, too, Burton v. Pinkerton, L.
R., 2 Ex. 340; 36 L. J. Ex. 137.
The instances are rare where incon-
venience can be recovered for, in an
action for a breach of contract, and
even in the cases referred to by the
author, the damages.were not given so
much because of the inconvenience to
which the plaintiff was put, as for the

his destination, and the inconvenience
and hardship involved went in aggra-
vation of the damages. In the case
of Brock ». Gale, ante, p. 18, n., the
dentist was greatly inconvenienced by
the loss of his baggage, with his
dental tools, yet the court would give
him nothing for that. Indeed, it isa
great inconvenience to « traveler to
lose his baggage at any time, and
often involves the necessity for the
purchase of changes of linen, etc.,
yet this inconvenience is not an ele-
ment of damages. The actual loss is
the measure.

3 Hamlin v. G. N. Ry. Co., 1H. &
N. 408; 26 L. J. Ex. 20.
82 GEnEeRAL Princretes oF Damace.

Sec. 26. Damages from breach of warranty.

A recent case in the common pleas' seems strictly to come
within the rule we are now discussing. There the defendant sold
a cow with a warranty that it was free from disease. It was, in fact,
suffering from foot and mouth disease. It died, and infected other
cows with which it was placed; and they died also. It was held
that he was liable for the entire loss. The case seems to have been
put upon the special fact, found by the jury, that the defendant
knew, or must be taken to have known, that the cow would be
placed with other cows, which would naturally be infected. Of
course the finding put the ‘case beyond doubt. But I imagine that
no such finding was necessary. As Grove, J., put it, “unless the
cow in question was kept in solitary confinement, it would naturally
be expected to herd with other cows.”” No special knowledge
was wanted to make it likely that a breach of the warranty would
lead to exactly the consequences which happened. Cows are by
nature gregarious, and the defendant could only have exonerated
himself by making out that he had express reason to believe that
[#19] *this particular cow would be kept in an abnormal state of

seclusion.

This case was followed in a very recent one, where a carriage
builder supplied an unfit pole, which broke, upon which the horses
became frightened and suffered injury. It was held that the proper
question to leave to the jury on the point of damages was, whether
the injury to the horses was or was not a natural consequence of the
defect in the pole. A finding in the affirmative would entitle the
plaintiff to recover the loss which had so accrued.*

1Smith v, Green, 1 C. P. D. 92;
45 L. J.C. P. 28. See, too, Ward
v. Hobbs, 2 Q. B. D. 331.

210. P.D. 96. Itis held in this
country that a person who knowingly
sells diseased animals is liable for all the
consequences to other animals owned
by the purchaser, and the same rule
would prevail whether he knew of the
diseased condition of the animals or
not, if he warranted them sound. Rose
o. Wallace, 11 Ind. 112; Sherrod 2.
Langdon, 21 Iowa, 518; Faris 9.
Lewis, 2B. Monr. (Ky.) 875; Bradley
v. Rea, 14 Allen (Mass.), 20.

* Randall » Newson, 2 Q. B. D.
10 ; 46 L. J. Q. B. 259. See, too,
Waters v. Towers, 8 Exch. 401.

The damage recoverable in actions
for a breach of a warranty, express or
implied, as to the quality of property
is prima facie the actual loss which
the purty sustains as a direct and neces-
sary consequence of the breach, which
generally is the difference between the
value of the article as it is, and what it
would have been, if the warranty had
been true, Stoudenmeir v. William-
son, 29 Ala. 558; Tuttle v. Brown, 4
Gray (Mass.), 457; Street v. Chapman,
Szconp Rute m Hapiey v. Baxenpars.

33

The second rule, viz., that damages which would not arise in the
usual course of things from a breach of contract, but which do
arise from circumstances peculiar to the special case, are not recov-
erable, unless the special circumstances are known to the person

29 Ind. 142; Muller v. Eno, 14 N. Y.
597; Hook v. Stovall, 26 Ga. 704; Whit-
more v. So. Boston Iron Co., 2 Allen
(Mass.), 52; Burton v. Young, 5 Harr.
(Del.) 233; McGavock v, Wood, 1
Sneed (Tenn.), 181; Moulton », Scru-
ton, 39 Me. 287; Grose v. Hennessey,
13 Allen (Mass.), 389; Wallace v.
Wren, 32M]. 146; Lacey v. Straughan,
11 Iowa, 258. And this is the rule,
even though the purchaser sells the
property for a price greater than that
which he paid for it, Brown v. Bige-
low, 10 Allen (Mass.), 242, or even
though its actual value is more than
the price paid for it, or even though
the value of the property, if it had
been of the quality warranted, would
have been worth double the price paid
for it. Thus in Murray v. Jennings,
42 Conn. 9, the plaintiff exchanged
with the defendant a yoke of oxen for
a horse which the defendant falsely
represented to be sound. The plain-
tiff was guilty of no fraud and would
not have made the exchange but for
the defendant's representations. The
oxen, at the time of the exchange,
were worth $100; the horse was worth
$125; but if sound, it would have
been worth $225. The court held that
the measure of recovery was the dif-
ference between the actual value of
the horse, and what its value would
have been if it had been sound.

So if a person sells a promissory
note for a much less sum than its par
value, representing that it is still due
when in fact it has been paid, the
measure of damage is the full amount
of the note, Sibley v. Hulbert, 15 Gray
(Mass.), 509, but if there is no fraud
charged, and the warranty merely ex-
tends to the title of the note, or thing
sold, the measure of recovery is’ the
purchase-money with interest. And-
ing v. Perkins, 29 Tex. 348.

If special damages ensue, they must
not only be alleged, but must also be
such as can fairly be said to have
been within the contemplation of the
parties.

5

Thus, where articles are manufac-
tured under an agreement, with a war-
ranty as to their quality, but they are
not furnished for any particular pur-
pose, the measure of recovery is the
difference in value between the
article as it is, and whatit would have
been if it had been as it was warranted
to be, Whitmore v. So. Boston Iron
Co., but if articles are manufactured
or sold for a particular purpose, and
the vendor, knowing the purpose for
which they are purchased, warrants
them to be fit for the purpose, or of
a quality or character which renders
them fit for the purpose, if true, he is
liable for all the injurious consequen-
ces that ensue to the vendee from the
breach of the warranty. Hitchcock v.
Hunt, 28 Conn, 348. This rule is well
illustrated in Milburn v. Belloni, 39 N.
Y. 53; reversing judgment below, 34
Barb. (N. Y.) 607. In that case the
plaintiff bought coal dust of the defend-
ant, tobe used in making brick, tell-
ing him that he wanted it to use in the
manufacture of brick, and that, unless
it was pure and free from soft coal
dust, all his brick would be worthless.
The defendant thereupon warranted
that the dust was pure, and the plain-
tiff, relying upon the warranty, em-
ployed the dust in the manufacture of
brick without examination, and as a
consequence, all his brick were
spoiled. The court held that he was
not limited in his recovery to the dif-
ference between the value of impure
and pure dust, but that he might recov-
er all the loss he had actually sustained
from the employment of the dust in
manufacturing the brick, as such dam-
ages were clearly within the contem-
plation of the parties. As further
illustrative of this rule, see Passinger
v. Thorburn, 34 N. Y. 634; affirming
the judgment in 35 Barb. (N. Y.) 17,
where in an action for a breach of
warranty in the sale of seed, that the
seed sold (cabbage seed) would pro-
duce cabbages of the quality and
variety of one exhibited to the plain-
34 GenerAL Princrptes or Damage.

who has broken the contract, received its first illustration from the
ease of Hadley v. Baxendale itself. In fact that alone was the point
actually decided in the case. The rule has been frequently followed
in subsequent decisions.

Sec. 27. Special loss not known to defendant. Portman v. Middleton.

The first of them, Portman v. Middleton,’ was a clear case. The
plaintiff had undertaken to repair a steam threshing-machine for a
third person by harvest time. For this purpose he required a new
fire-box. The defendant undertook to make him one in a fortnight;
but the plaintiff did not tell him of his own contract to repair the
threshing-machine. The defendant made default in delivering the
fire-box, and the plaintiff in consequence was unable to perform his
contract, and was sued by the owner of the threshing-machine and
obliged to pay him compensation. This compensation he sought to
recover from the defendant, but failed, because it could not have
been in the contemplation of the defendant when he made his con-
tract with the plaintiff, and was not the ordinary consequence of

the breach.

Sec. 28. Smeed v. Foord.

The next, Smeed v. Foord,’ in which the rule was adopted by the
court of queen’s bench, was more complicated. The defendant con-

tiff at the time (which was a Bristol
cabbage) and the seed in fact was not
of that variety, it was held that the
plaintiff was not limited to the recov-
ery of the difference between the value
of the seed sold, and the value of such
seed as it was warranted to be, but
might recover the difference between
the value of the crop raised, and the
crop expected from the seed. See,
also, to same effect Van Wyck v. Allen,
69 N. ¥. 62;. White v. Miller, 71 id.
118; also S. P., Flick 0. Wether-
bee, 20 Wis. 392; Wolcott v. Mount,
86. N. J. Law, 262; Randall v. Raper,
KE. B. & E. 84, If a person sells a horse
warranting it to be kind and gentle,
and it turns out to be vicious, and
kicks and injures the purchaser, or if
it proves unmanageable and runs away
with him and breaks and injures his

140, B. (N. 8.) 322; a7 L. I...
231.

carriage, the seller is clearly liable for
such consequences, because they are
precisely such as must have been an-
ticipated by the parties if the war-
ranty was untrue, therefore the rule
may be said to be that for a breach of
warranty, when the vendor is not in-
formed or does not know that it is
purchased for a particular purpose,
the measure of recovery is the differ-
ence between the property as it is, and
its value if it had been as warranted;
but, if the vendor knew that it was
purchased for a particular purpose
and expressly or impliedly warranted
it fit for such purpose, or to be pos-
sessed of qualities that render it fit for
such purpose, he is liable for all the
damages that ensue from the breach,
that can fairly be said to have been
contemplated by the parties.

715, &E. 602; 28L. J. QB. 178.
Sreconp Rute mw Hapwey v. Baxenpare. 35

tracted to deliver to the plaintiff a threshing-machine. He knew
that the plaintiff’s practice was to thresh *his wheat in the field. [*
The defendant made detault, and the result was that tle plain- }
tiff, who could not get a machine elsewhere, was obliged to carry
the wheat and stack it. While stacked it was injured by rain,
and after being threshed it had to be kiln-dried. It was then sold,
but fetched less than it would have done but for the delay, the
market price of wheat having fallen in the meantime. It was held
that both parties must have foreseen that if the machine were not
delivered the wheat must be stacked, and injury from weather would
probably result; and, therefore, that the plaintiff was entitled to
recover the expenses of stacking the wheat, the loss arising from its
deterioration by rain, and the expense of drying it; but not the loss
arising from the fall in the market price, because the latter was not
the natural result of the breach of contract, nor could it have been
contemplated when the contract was made.

The concluding part of the above ruling was put upon a finding
of fact, viz., that the parties could not have contemplated a fall in
the market as one of the natural consequences of a breach ot contract.
Upon this point, however, it is difficult to see the distinction between
this case and the other cases quoted below.1 If the defendant had
undertaken to thresh the plaintiffs wheat and hand it over to him,
and in consequence of his delay the market had fallen, these cases
decide that the loss so incurred would have been part of the natural .
loss arising from the breach of contract. Here the defendant only
undertook to supply him with a threshing-machine. But every con-
sequence, which legally followed from the breach of contract to
thresh, followed as an equally necessary consequence from a breach
of contract to supply the means of threshing.

Sec. 29. Gee v. Lancashire Railway Co.
In Gee v. Lancashire and Yorkshire Railway Company,’ the de-

1 Collard v. 8. E. Ry. Co.; Borries
vy. Hutchinson; Ward v. New York
Central Ry., ante, pp. 13, 14

In Brayton v. Chase, 3 Wis. 456, in
an action for the non-delivery of a
reaping machine it was held that dam-
ages resulting from the amount of
grain on the plaintiff’s land, and the
hiring of labor to reap the same were
held too remote to be given in evi-

dence, as they resulted rather from
the peculiar situation of the parties,
than from the breach of the contract.
Under the ruling in the case cited in
the text, the evidence would clearly
be admissible, as the parties must
have foreseen that if the machine was
not delivered, the plaintiff would have
to employ other means to harvest it.
26H. &N. 211; 30 L. J. Ex. 11,
36

GeneraL Princrptes or Damace.

fendants, who were carriers, delayed forwarding some cotton to
the plaintiff’s mill, which in consequence was stopped. There had
been no notice at the time of delivery to the defendants that any

[#21 J

particular inconvenience would be likely *to result from delay.
‘The plaintiffs were held not to be entitled to recover for loss of

profits from the mill standing idle, nor the amount paid for wages
during the time. The loss was in fact sustained, not in consequence
of the non-arrival of the cotton alone, but in consequence of that
fact and of the plaintiffs having no other cotton in stock ; the lat-
ter being a fact which the defendants were not bound to expect.! A

1 In Fox». Harding, 7 Cush. (Mass,)
516, the court say: ‘‘The rule has not
been uniform or very clearly settled,
as to the right of a party to claim a
loss of profits as a part of the dam-
ages for breach of a special contract.
But we think there is a distinction by
which all questions of this sort can
be easily tested. If the profits are
such as would have accrued and grown
out of the contract itself, as the direct
and immediate results of its fulfillment,
then they would form a just and
proper item of damages to be recov-
ered against the delinquent party
upona breach of the agreement. These
are part and parcel of the contract it-
self, and must have been in the contem-
plation of the parties when the agreement
was entered into. But if they are such
as would have been realized by the party
JSrom other independent and collateral
undertakings, although entered into in
consequence and on the faith of the prin-
cipal contract, then they are too uncer-
tain and remote to be taken into consid-
eration asa part of the damages occa-
sioned by the breach of the contract in suit.
The same distinction is sustained by
The Philadelphia, Wilmington & Balti-
more Railroad Company v. Howard,
13 How. 307.

Upon this principle it has been held
that when a building contract is ended
by the wrongful act of the coutractees,
they are liable to an action for dam-
ages for the work done, and the mate-
rials purchased, and also for the prof-
its of the work. Cook v. The Com. of
Hamilton, 6 McLean (U.S. C.C.), 612.
See, also, Chapin ». Norton, id.
‘B00; Barnard v. Conger, id.497; The

Coweta Falls Mfg. Co. v. Rogers, 19
Ga. 417.

Whatever may formerly have been
the rule, there is now no question but
that profits are recoverable as special
damages, in case they are certain, and
such as might naturally be expected to
follow the breach. ‘‘ Gains prevented
as well as losses sustained,” says AN-
DREwWs, J., ‘‘ may be recovered for as
profits, when they can be rendered: rea-
sonably certain by evidence, and have
naturally resulted from the breach.”
White v. Miller, 71 N. Y. 183;. Mas-
terton v. The Mayor, etc., 7 Hill (N.
Y.), 61; Griffin », Colver, 16 N. Y.
489; Messmore v. Shot Co., 40 N. Y.
422; Forrest v. Caldwell, 5 La. Ann.
220; Nightingale v. Scannell, 18 Cal.
315; Stille » Jenkins, 15 N. J. Law,
802; James v, Adams, 8 W. Va. 568;
Booth v. Spuyten Duyvil, etc., Co., 60
N. Y. 487. Probable profits cannot be
recovered; Olmstead ». Burke, 25 Ill.
86; nor those which are uncertain or
contingent; Smith v. Condry, 17 Pet.
(U. 8.) 20; Fox vo. Harding, ante; but
such profits as are the natural, imme-
diate and necessary result of the
breach, may be fairly supposed to have
entered into the contemplation of the
parties, and, if susceptible of being
definitely ascertained, by reference to
market rates or other definite data,
are a proper element of damage.
James v, Adams, ante. In the
priucipal case, the stoppage of the
plaintiff's mill, under the circum-
stances, could not be said to be the
natural, immediate or necessary result
of the breach; nor could the damages
be regarded as within the contempla-
Seconp Ruiz iw Hapury v. Baxenpare. 37

suggestion was thrown out by Bramwe tt, B., that to the rule laid
down in Hadley v. Baxendale a qualification might, perhaps, be
added, that in the course of the performance of a contract One party
might give notice to the other of any particular consequence which
would result from the breaking of the contract, and then have a
right to say, “If -you, after that notice, persist in breaking the
contract, I shall claim the damages which will .result from the
breach.”

Sec. 30. Meaning of market value. Gr. Western Railway Co. v. Redmayne.

In Great Western Railway Company v. Redmayne,! an un-
successful attempt was made to recover damages on the authority of
the cases which have just been mentioned. The plaintiff sent goods
by the defendants’ railway to his traveler at Cardiff, but through the
defendants’ negligence they did not arrive till after the traveler had
left. The plaintiff sought to recover the profits which he would
have derived from a sale of the goods at Cardiff, on the principle
that the market value to him, for the purposes of sale, was dimin-
ished after the departure of the traveler by the amount of the profit
that would have been gained by a sale there; but it was held that
the market value of the goods was their value in the market inde-
pendently of any circumstances peculiar to the plaintiff, and that the
profits which would have been made by the sale at Cardiff, through
the traveler being present, could not be recovered.

Sec. 31. Different results contemplated by each party. Cory v. Thames Iron-
.corks Co.

In the recent case of Cory v. Thames Ironworks Company,’ a dif-
ficulty arose in applying the rule in Hadley v. Baxendale, because
the parties had not in contemplation the same use for the article to
be supplied, which was of a novel character. The defendants had
built a large floating boom-derrick, fitted with machinery for raising
sunken vessels, for a company which had become insolvent, and had

tion of the parties. See Minor ». custom, by reason of alleged defective
Steamer Picayune, 13 La, Ann. 564; performance of a contract to dress mill
Masterton v. Brooklyn, 7 Hill (N. Y.), stones, was not recoverable. See, also,
61. In Fleming ». Beck, 48 Penn. St. Academy of Music », Hackett, 2 Hilt.
809, it was held that loss of profits or (N. Y.) 217.

IL. RB. 10. P. 329. 'L. R., 3Q. B. 181; 37 L.J.Q. B. 68.
388 GrneRAL Princretes or DAMAGE.

[#99] left it on their hands. The plaintiffs *agreed to buy the hull of

the derrick, which the defendants were to empty of machinery,
and deliver at a time fixed. The plaintiffs, who were coal merchanis,
intended to place in the hull hydraulic cranes, for the purpose of
transshipping their coals direct from colliers into barges. This pur-
pose was entirely novel and unknown to the defendants; they be-
lieved that the plaintiffs intended to use the hull for a coal store,
which was the most obvious use to which such a vessel was capable
of being applied by persons in the coal trade ; but the derrick being
an entirely novel and exceptional vessel, and the first of the kind
built, no vessel of the sort had ever been applied to such a purpose.
She was capable, however, of being profitably employed for that
purpose, and had she been so employed, her non-delivery at the time
fixed would have caused loss and damage to the plaintiffs to the
amount of £420. As it was, the plaintiffs experienced a much
greater loss, for they had purchased machinery and steam tugs to be
used in conjunction with the hulk, and these lay idle for a consider-
able time. The plaintiffs, therefore, lost the interest upon the
moneys expended, and, also, the profits which they would have
made by the use of the derrick. The chief contention was as to
whether the defendants were liable to pay the £420. It was appa-
rent that the plaintiffs could not recover the larger damages, the
special purpose to which they had intended applying the derrick not
having been made known to the defendants; but it was further
urged for the defendants, that to give the plaintiffs the £420 would
be to give them damages for what they had not suffered, nor even
contemplated suffering, namely, being deprived of the use of the
derrick as a coal store. The result, however, of this reasoning
would have been, that when the buyer intended to apply a thing to
a purpose which would make the damages greater, and did not
intend to apply it to the purpose to which the seller supposed he
intended to apply it, the seller would be set free altogether.
The court held that the sellers, having contemplated that the der-
rick was to be employed in what was in fact the most obvious mode
of earning money, and the plaintiffs having lost more money than
they would have lost if they had so employed it, they were entitled
to be compensated to that extent, the loss having been the natural
consequence of the non-delivery of the derrick.

a
Szconp Ruie in Hapiry v. BaxEenDAue. 39

Sec. 32. Damages not contemplated by the defendant.
Railway Co.

*In Hales v. London and North Western Railway Co.,! the
plaintiff had made a contract to supply a person at Seaham
with equipments and ornaments for a foresters’ festival, to be held on
a particular day. He delivered them for carriage to the defendants,
addressed to Seaham, but no information was given as to the pur-
pose for which they were sent, or the day on which it was desired
that they should arrive. The ticket stated that they were to be for-
warded by luggage train. If they had been sent on with due dili-
gence they would have arrived in time. They were delayed
unreasonably, and arrived late, in consequence of which the plaintiff
incurred 5/. expenses in searching and inquiring for his goods, and
lost 202 which he would have received for their hire. It was
held that he was entitled to recover the former sum, but not the
latter.

Hales v. London, etc.,

[ *23 ]

Sec. 33. Expenses incurred by delay of goods.

In such a case, however, as the above, the expenses incurred in
searching for missing goods must be the reasonable expenses that
would naturally be incurred for that purpose, such as cab hire, mes-
sengers, and the like. The hotel expenses of the owner, while he
remained in the town to which a parcel was addressed, looking for
it, have been held to be irrecoverable. They were not the ordi-
nary results of a parcel being mislaid, but the special results aris-
ing from the fact that the owner was on a journey to some other

place.”

14B. &S. 66; 32 L. J. Q. B. 292;
Frazer v. Smith, 60 Tl. 145.

In an action for a breach of an
agreement in a lease of an opera
house, to finish the house by a certain
time for the tenant’s use, the tenant’s
expenses and loss in advertising his
performance accordingly, are to be in-
cluded in his damages, but losses of an-
ticipated profits arising from the fact
that a vocalist took cold from the damp-
ness of the house, cannot be taken into
consideration, being too uncertain.
Academy of Music v. Hackett, 2 Hilt.
217.

See, also, Morgan ». Negley, 53
Penn. St. 158; Arrowsmith ». Gor-
don, 3 La, Ann. 105; Brock v. Gale,
14 Fla. 523; Benziger v. Miller, 30
Ala. 206; Aldrich v. Goodell, 75 Tl. -
452; Piper v. Kingsbury, 48 Vt. 480;
Prosser v. Jones, 41 Iowa, 674; Hal-
loway ». Stephens, 2 T. & C. (N. Y.)
658; Fort v, Orndoff, 7 Heisk. (Tenn.)
167; Keith v. Hinkston, 9 Bush (Ky.),
283; Noble v. Ames’ Manuf. Co:, 112
Mass. 492.

2 Woodger v. G. W. Ry. Co. L.
R., 20. P. 818; 36 L. J. C. P. 177,
40 General Privcretes or Damace.

Sec. 34. Loss of special contract not recoverable. Horne v. Midland Rail-
way Co.

Horne v. Midland Railway Company! is an illustration of the
limit to be put upon the rule, as stated above, that a fall in market
value is recoverable as damage for breach of contract. There the
plaintiffs were under a contract to deliver in London on the 3d
Feb., 1871, shoes for the use of the French army, during the late
war. The price was an unusually high one. They handed them over
to the defendants for carriage, stating that they were under a con-
tract to deliver by the 3d, but not stating the special nature of the
contract. The shoes were delayed, in consequence of which the
purchasers refused to take delivery, and the contract was lost. The
plaintiffs had to sell them at the ordinary market price. This price
had not varied between the day at which they were due, and the
[#24 ] day at which *they were received, but it was below the special

contract price, of which the defendants were ignorant. It was
held that the defendants were not liable for the difference between the
ordinary market value of the shoes, and the particular contract
price, they not having been informed of the special circumstances
which led to the special loss. Whether they would have been so
liable, even if such a communication had been made to them, was a
further question, as to which this case will be referred to again.

Sec. 35. Non-delivery of telegram.

In one case’ the plaintiffs had intrusted the defendant with a
message in cypher, to be transmitted by telegraph to America-

1Z, R., 7C. P. 583, affirmed, L. R.,

8 0. P. 181; 41 L. J.C. P. 264,
affirmed, 42 id. 59.

* Sanders v. Stuart, 1C. P. D. 326;
45 L. J. C. P. 682.

In Gildersleeve ». United States,
etc., Co., 29 Md. 282, the plaintiff,
who was a broker, sent a dispatch as
follows: ‘‘Sell fifty gold.” It was
shown that the dispatch meant,
among brokers, $50,000 in gold, but
it did not appear that the company’s
agent so utiderstood it, and upon
these facts it was held erroneous to
charge the jury that the plaintiff
could recover the whole of his loss.
The rule is otherwise where the mes-
sage is intelligible. In Squire o. W.
U. Tel. Co., 98 Mass. 232, it was held

that if a telegraph company contract
to transmit, without any special re-
striction of their liability, a message
accepting an offer to sell certain goods
and by their negligence in delivering
at a certain place for a certain price,
if the sender fails to complete the pur-
chase, he may recover from them, in
damages, the difference between the
price which, by the message, he agreed
to pay, andthe price which he would
have been compelled to pay at the same
place, in order, with use of due dili-
gence, to have purchased goods there
of the same kind, quantity and quality.

In Manville v. W. U. Tel. Co., 37
Iowa, 214, a similar rule was adopted,
and where a dispatch was sent to the
plaintiff, directing him to ship his
Turep Rutz in Hapiey v. BaxEnpAte. 41

The message was never delivered, and the plaintiffs admittedly lost
considerable profits which they would have made by the transaction
to which the message related. It was held, however, that no more
than nominal damages could be recovered. The message was
unintelligible and was intended to be unintelligible to the de-
fendant. It not only gave him no clue as to the special loss that
might result from his negligence, but it gave him no reason to
suppose that any loss at all would follow. or all he knew, it
might have contained information that the sender was just married,
or that his wife had had a baby. Consequently, damages could
not be obtained under either the first or second portion of the
rule in Hadley v. Baxendale.

Sec. 36. Whether any liability arises from mere communication of special cir-
cumstances.

The third rule supposed to be laid down by Baron ALpERson,
viz., that where the special circumstances are known, or have been
communicated to the person who ultimately breaks the contract,
and where the damage complained of flows naturally from the
breach of contract under those special circumstances, then such
special damage must be supposed to have been contemplated by the
parties to the contract, and is recoverable, must be taken as being
much more doubtful unless under very special limitations. It may be
asked with great deference, whether the mere fact-of such conse-
quences being communicated to the other party will be sufficient,
without going on to show that he was told that he would be held
answerable for them, and consented to undertake such a liability.

In all probability, if the carrier, in the case of Hadley v. Bax-
endale, *had been told that any delay in delivering the [*28]
shaft would make him liable to pay the whold profits of the
mill, he would have required an additional rate of compensation
before facing such a responsibility. The question comes to this:
The law says that every one who breaks a contract shall pay for
its natural consequences and in most cases states what those conse-
quences are. Can the other party by merely acquainting him with

hogs at once, but the company failed
to deliver it for four days, it was held
that he was entitled to recover the
difference between the price of
hogs when he was entitled to place

6

them on the market after receiving the
dispatch, and their value on the day he
could have got them to market, if the
dispatch had been properly delivered.
42 .Generat Princreues or Damage.

a number of further consequences, which the law would not have
implied, enlarge his responsibility to the full extent of all those con-
sequences, without any contract td that effect? No doubt it may
be said that it was in the power of the defendant to have expressly
refused such responsibility. True. But ought not the onus of
making a contract rather to lie on the party who seeks to extend the
liability of another than upon him who merely seeks to restrain
his own within its original limits?

Sec. 37. Cases of common carrier. British, etc., Saw Mill Co. v. Nettleship.

This reasoning would seem to apply with special force to cases,
such as that of a common carrier, where the defendant would cer-
tainly be unable to decline the duty which was thrust upon him,
and might even be unable to exact any additional remuneration for
performing it.

The case of British Columbia Saw Mill Co. v. Nettleship,! is
important as bearing upon the point now suggested, that a mere
communication of the consequences of a breach of the contract is
not sufficient to enlarge the responsibility of the party to whom it
ismade. ‘The plaintiffs delivered to the defendant for carriage to
Vancouver’s Island several cases of machinery intended for the
erection of a saw mill. The defendant knew generally that the
cases contained machinery. On the arrival of the vessel at her des-
tination, one of the cases which contained parts of the machinery,
without which the mill could not be erected, was missing. The
’ plaintiffs were obliged to replace those parts from England, at a
cost, including freight, of 3537. 17s. 9d., and with a delay of twelve
months. A fair rate of hire of the machinery, applied to the pur-
poses for which it was required by the plaintiffs, would have been
for twelve months 2,647. 2s. 3d., which amount the plaintiffs

sought to recover. Their claim, however, to this *sum was
J disposed of by the second branch of the rule in Hadley ».
Baxendale, the defendant not having known that the case contained
portions of the machinery which could not be replaced at Van-
couver’s Island, and without which the rest could not be put to-
gether. But Wruus, J., discussed the effect of knowledge in the
following terms:—“I am disposed to take the narrow view, that

[*26

1L. RB. 38 C. P. 499; 37 L. J. C. P. 235.
*

Turep Ruiz mw Hapiry v. Baxenpate. 43

one of the two contracting parties ought not to be allowed to
obtain an advantage which he has not paid for. The conclusion at
which we are invited to arrive would fix upon the ship-owner, be-
yond the value of the thing lost and the freight, the further liability
to account to the intended mill-owners, in the event of a portion of
the machinery not arriving at all, or arriving too late, through
accident or his default, for the full profits they might have made
’ by the use of the mill if the trade were successful and without a
rival. If that had been presented to the mind of the ship-owner at
the time of making the contract, as the basis upon which he was
contracting, he would at once have rejected it.1 And, though he
knew from the shippers the use they intended to make of the arti-
cles, it could not be contended that the mere fact of knowledge,
without more, would be a reason for imposing upon him a greater
degree of liability than would otherwise have been cast upon him.
To my mind, that leads to the inevitable conclusion that the mere
fact of knowledge cannot increase the liability. The knowledge
must be brought home to. the party sought to be charged, under
such circumstances that he must know that the person he contracts
with reasonably believes that he accepts the contract with the
special condition attached to it. Several circumstances occur to
one’s mind in this case to show that there was no such knowledge
on the defendant’s part which would warrant the conclusion con-
tended for by the plaintiffs. In the first place, the carrier did not
know that the whole of the machine would be useless if any por-
tion of it failed to arrive, or what that particular part was. And
that suggests another consideration. He did not know that the
part which was lost could not be replaced without sending to Eng-
land. And, applying what I have before suggested, if he did know
this, he did not know it under such circumstances as could reason-

1A telegraph company received damages. The company was not in-

from the plaintiff a message inform-
ing the person to whom it was ad-
dressed where he could get a certain
sum of money, which message was, by
the negligence of the company, de-
layed until it was too late for the
money to be used as the plaintiff in-
tended, whereby he lost a valua-
ble contract, and was compelled, by
the terms of his agreement, to pay

formed of any particular use for
which the money was intended. It
was held that the plaintiff could not
recover from the company any thing
more than the amount paid for the
message, and interest on the money
therein mentioned, during the time
it was delayed. Landsberger v. Mag-
netic Telegraph Co., 32 Barb. (N. Y.)
530. .
44 GrneraL Prinoretes or DaAmace.

ably lead to the conclusion that it was contemplated at the time of

the contract that he should *be liable for all those conse-
[*27] '

quences in the event of a breach. Knowledge on the part
of the carrier is only important if it forms part of the contract.
It may be that the knowledge is acquired casually, from a stranger,
the person to whom the goods belong not knowing or caring
whether he had such knowledge or not. Knowledge, in effect, can
only be evidence of fraud, or of an understanding by both parties
that the contract is based upon the circumstances which are com-
municated.”

The court considered the plaintiffs entitled to recover the sum
necessarily expended’ in replacing the lost box of machinery, and
the freight, and interest upon the amount for the time the plaintiffs
were delayed, the interest being apparently given by way of com-
pensation for the delay, upon the analogy of the practice of allow-
ing interest in the case of non-payment of money.

Sec. 38. Same view expressed in Horne v. Midland Ry. Co.

In Horne v. Midland Railway Company,' the facts of which have
been already stated,’ Wituzs, J., after pointing out that the defend-
ant had no notice of the special circumstances out of which the
special damage had arisen, proceeded to say: “Igo further. I ad-
here to what I said in British Columbia Saw Mill Company v. Net-
tleship, viz., that the knowledge must be brought home to the party
sought to be charged, under such circumstances that he must know
that the person he contracts with reasonably believes he accepts the
contract with the special condition attached to it.” And Kxatine,
J., said, “I think, giving the fullest effect to Hadley v. Baxendale,
and the rule there laid down, but which ought not to be extended,
we cannot hold the defendants liable in respect of a loss resulting
from an exceptional state of things which was not communicated to
them at thé time. There must, if it be sought to charge the car
rier with consequences so onerous, be distinct evidence that he had
notice of the facts, and assented to accept the contract on those
terms.”

The same views were expressed even more strongly by some of

'L. RB. 70, P. 588, 591; 41 L. J. ? Ante, p. 39.
C. P. 264.
Tarrp Rute mw Hanptey v. BaxEnpAte. 45

the judges in the same case, when it was affirmed on appeal. Kenry,
C, 5. pads The goods with which we have to *deal are not ce 28]
the subject of any expressstatutory enactment; the case with
regard to them depends on the common law, taken in connection with
the acts relating to the defendants’ railway company. Now it is clear,
in the first place, that a railway company is bound, in general, to
accept goods such as these, and carry them as directed to the place
of delivery, and there deliver them. But now suppose that an in-
timation is made to the railway company, not merely that if the
goods are not delivered by acertain date they will be thrown on the
consignor’s hands, but in express terms stating that they have
entered into such and such a contract, and will lose so many pounds
if they cannot fulfill it; what is then the position of the company ?
Are they the less bound to receive the goods? I apprehend not.
If then they are bound to receive, and do so without more, what is
the effect of the notice? Can it be to impose upon them a liability
to damages of any amount, however large, in respect of goods which
they have no option but to receive? I cannot find any authority
for the proposition that thenotice without more could have any such
effect. It does not appear to me that the railway company has any
power, such as was suggested, to decline to receive the goods after
such a notice, unless an extraordinary rate of carriage be paid. Of
course they may enter into a contract, if they will, to pay any
amount of damages for non-performance of their contract, in con-
sideration of an increased rate of carriage, if the consignors be will-
ing to pay it; but in the absence of any such contract expressly en-
tered into, there being no power on the part of the company to
refuse to accept the goods, or to compel payment of an extraordi-
nary rate of carriage by the consignor, it does not appear to me that
any contract to be liable to more than the ordinary amount of dam-
ages can be implied from mere receipt of the goods after such a
notice as before mentioned.”

Observations to the same effect were made by Marrtny, B., and
Bracxeurn, J. Lusu, J., said that he agreed “with the suggestion
that the notice in such cases can have no effect except so far as it
leads to the inference that a term has been imported into the con-

IL, R80. P. 136; 42 L. J.C. P. 59.
46 Generat Princretes or Damage.

tract making the defendant liable for the extraordinary damages.”
He differed, however, from the Chief Baron in holding that the
railway company might have demanded extraordinary remuneration
for extraordinary risk.. *Upon the question of fact he thought
that the company had received such notice as threw upon
them the responsibility of making further inquiries, and that not
having done so, they must be taken to have accepted the goods to
be carried on the terms that they were to be liable for the consequent
loss if they were not delivered.?

[ *29 }

Sec. 39. Same question in Elbinger Actien-Gesellschaft v. Armstrong.

The same question was again discussed in Elbinger Actien-Gesell-
schaft v. Armstrong,’ there the defendant agreed to supply the
plaintiff with 666 sets of wheels and axles, to be delivered at fixed
intervals in February, March and April, free on board at Hull.
The plaintiffs were under a contract to deliver to a Russian railway
company 1000 wagons, half on 1st May, 1872, and the rest on 31st
May, 1873, and they were bound to pay two roubles per wagon for
each day’s delay in delivery. In the course of the negotiations be-
tween the plaintiff and defendant, the defendant was informed of
this contract, but neither the precise day for the delivery, nor the
amount of the penalties was mentioned. The wheels were delayed,
in consequence of which the plaintiffs became liable to the penalties,
but the Russian company agreed to take one rouble per day, amount-
ing in all to £100. It was contended, on the one hand, that the
defendant was only liable to nominal damages. On the other hand,
‘that he was liable, as a matter of law, to the exact amount of penalties
which the plaintiffs had been compelled to pay for breach of their
contract with the Russian company. The first view was at once
negatived by the court. They said, “It is obvious that both parties
contemplated that the wheels and axles were to be put in immediate
use. Under such circumstances, the natural and almost inevitable
consequence of a delay in delivering a set of wheels would be
that the plaintiffs, if they meant the wagon for their own use, or
that their customers, if the wagon was bespoken, would be deprived
of the use of a wagon for a period equal to that for which the set

4L, RB. 8C. P, 189-141, 145, °L. R., C. B-473; 48 L. J. Q. B.
211.
Turrep Rote m Hapiey v. BaxenDate. 44

of wheels was delayed. At all events, the plaintiffs were entitled
to recover at arate equal to whatever the jury should find to be
reasonable compensation for the loss of the use of the wagon. See
Cory v. Thames Ironworks *Company.’ We think, there- [*30]
fore, it would have been a misdirection if the jury had been
directed to find no more than nominal damages.

“We have had more difficulty in determining whether the plain-
tiffs are entitled to keep the verdict for the amount as it stands (£100
18s.). If we thought that this amount could only be come at by
laying down as a proposition of law that the plaintiffs were entitled
to recover the penalties actually paid to the Russian company, we
should pause before we allowed the verdict to stand.” The court
then referred to the judgment in Hadley v. Baxendale, saying, “so
far as the case decides that the defendant is not liable for any
unusual consequences, arising from circumstances of which he has
not notice, the case has often been acted upon. “But an inference
has been drawn from the language of the judgment, that whenever
there has been notice at the time of the contract that some unusual
consequence is likely to ensue if the contract is broken, the damages
must include that consequence, but this is not as yet at least estab-
lished law.” Their lordships then quoted the passage which will
be found in the text,’ ending with the sentences, “the law says
that every one who breaks a contract shall pay for its natural con-
sequences; and in most cases states what these consequences are.
Can the other party, by merely acquainting him with a number of
further consequenses, which the law would not have implied, enlarge
his responsibility to the full extent of all those consequences, with-
out any contract to that effect?” Upon this they said, “we are not
aware of any case in which Hadley v. Baxendale has been acted
upon in such a way as to afford an answer to the learned author's
doubts; and in Horne v. Midland Railway Company,’ much that
fell from the judges in the exchequer chamber tends to confirm
those doubts.”

It was necessary to decide the point, however, as the court held
that the jury might fairly have given general damages to the

'1L. RB, 3Q,. B. 181; 37 L. J. Q. 3L. RB, 8C. P. 131; 42 L. J.C. P.
B. 68. : 59.
2 Ante, p. 41.
48 GeneraL Principtes or DAMAGE.

amount of £100 13s. without any reference to the penalties actually
incurred.

Sec. 40. Simpson v. North-Western Railway Co.

The only case subsequent to the above decisions in which
r*31 | *the same point seemed to arise, was the case of Simpson v.
London and North-Western Railway Company.’ There the
plaintiff was a manufacturer of cattle food, who was in the habit of
sending samples of his goods to cattle shows, with a show-tent and
banners, and attending there himself to attract custom. He intended
to exhibit some of these samples at the Newcastle show, and delivered
them for transmission to the defendants. The contract was made with
the defendants’ agent at a cattle show at Bedford, where the plaintift
had been exhibiting his samples, and where the defendants had an
agent and office on the show ground, for the purpose of seeking
traffic. The evidence as to the terms of the contract was, that a
consignment note was filled up by the plaintiff’s son, consigning the
goods as “ boxes of sundries” to “Simpson & Co., the show-ground,
Newcastle on Tyne,” and that he indorsed the note “must be at
Newcastle on Monday, certain,” meaning the next Monday, the 20th
July. Nothing was expressly said as to the plaintifi’s intention to
exhibit the goods at Newcastle, nor as to the goods being samples.
They did not arrive till several days after time, and when the show
was over. It was proved that the plaintiff obtained custom by ex-
hibiting his samples at shows, but no evidence was given as to his
prospects with regard to the Newcastle show in particular. A ver-
dict by consent was entered for £20, beyond a sum which had been
paid in, with leave to move to enter the verdict for the defendants,
if the court should be of opinion that the plaintiff was not entitled
to recover for either loss of time in waiting for the goods, or loss of
profits. It was held the plaintiff was entitled to his verdict.
Cooxsurn, C. J., said: “The law, as is to be found in the reported
cases, has fluctuated; but the principle is now settled that, when-
ever either the object of the sender is specially brought to the notice
of the carrier, or circumstances are known to the carrier from which
the object ought in reason to be inferred, so that the object may be
taken to have been within the contemplation of both parties, dam-

411Q.B Dz. 274; 45 L. J. Q. B. 182.
Turrp Rute m Hapizy v. Baxenpare. 49

ages may be recovered for the natural consequences of the failure
of that object. The plaintiff in the present case is in the habit of
going about the country exhibiting his cattle *spice at shows, [#32]
to attract purchasers. The defendants had an agent on the
ground at the Bedford agricultural show, where this contract was
made, for the purpose of drawing custom to their line; and their
agent must have known that the plaintiff had been exhibiting these
goods, and that they were being sent to Newcastle for the same pur-
pose. I, therefore, cannot doubt that there was in this case common
i knowledge of the object in view. As to the supposed impossibility
“NX of ascertaining the damages, I think there is no such impossibility,
as to some extent, no doubt, they must be matters of speculation,

x but that is no reason for not awarding any damages at all.”
It seems to me, however, that there is nothing whatever in either
SS the decision or the judgment, which raised the point now under
~ discussion. Indeed, notwithstanding some expressions in the judg-
ment, it appears that the case really came under the first rule in
Hadley v. Baxendale, and not under the third. Goods are con-
signed with a contract that they are to be delivered at a particular
S place, or a particular day. The contract is broken. What are the

3

damages? They are the damages naturally arising from the non-
arrival of the particular sort of goods. The evidence as to knowl-
edge simply went to show that the defendants knew what sort of
goods they were. A. carrier will be liable to different damages
according as he delays a basket of fish or a basket of coals, for the
simple reason that delay frustrates the object of sending the fish,
but not that of sending the coals. Here the plaintiff, claimed no
special damages, but merely general.damages for the failure of his
object in sending the goods. The question would really have arisen
if he had shown that a customer was waiting at Newcastle, who
would have made a heavy contract with him, which he lost by the
non-arrival of his samples, and that he had thereby lost 1,000/.,
which he sought to recover. Any such claim would, as I humbly
conceive, have failed, whatever knowledge the defendants had of
the object for which the samples were being sent.

Sec. 41. Rules suggested in place of third rule.
In the present state of the authorities, therefore, I would suggest

7
50 GeneraL Privo es or Damage.

that in place of the third rule, supposed to be laid down by Hadley
v. Baxendale, the law may perhaps be as follows :

“First — Where there are special circwmstances connected with a
contract, which may cause special damage to follow if it is broken,
[#33] mere notice of such special circumstance given *to one

party will not render him liable for the special damage,
unless it can be inferred from the whole transaction that he con-
sented to become liable Sor such special damage.

“ Secondly — Where a person who has knowledge or notice of such
special circumstances might refuse to enter into the contract at all,
or might demand a higher remuneration for entering into it, the
fact that he accepts the contract without requiring any higher rate
will be evidence, though not conclusive evidence, from which tt may
be inferred that he has accepted the additional risk in case of
breach.

“ Thirdly — Where the defendant has no option of refusing the
contract, and is not at liberty to require a higher rate of remunera-
tion, the fact that he proceeded in the contract after knowledge or
notice of such special circumstances is not a fact from which an
undertaking to incur a liability for special damages can be in-
Serred.

“ Fourthly— Even if there were an express contract by the de-
fendant to pay for special damages, under the circumstances last
supposed, it might be questioned whether such a contract would not
be void for want of consideration. Take the case of a railway pas-
senger who buys his ticket, informing the clerk of some particular
loss that would arise upon his being late. Suppose the clerk were
to undertake that the company should be answerable for the .loss,
and that such an undertaking should be held to be within the sphere
of his duty. Would it not be purely gratuitous? The considera-
tion for any promise by the company, arising from the payient of
the fare, would be exhausted by their carrying the passenger to his
destination, or paying the ordinary damages for failure to do so.
What would tHere be left to support the special undertaking to pay
an exceptional penalty.! Of course it would be different if a special
payment were made by way of premium for incurring the increased
risk.”

1 See Cases, 1 Sm. L. C. 152, 7th ed.
Tuamp Rov w Haviey v. Baxenpae. 51

Sec. 42. Principle suggested in Pletcher v. Tayleur.

In the case of Fletcher v. Tayleur, what was supposed to be a
new principle as to the assessment of damages was thrown out by
Jervis, C. J., and Witixs, J. The latter said: “It certainly is
very desirable that these matters should be based upon certain and
intelligent principles, and that the measure *of damages
for the breach of a contract for the delivery of a chattel
should be governed by a similar rule to that which prevails in
the case of a breach of a contract for the payment of money. No
matter what the amount of inconvenience sustained by the plain-
tiff, in the case of non-payment of money, the measure of damages
is the interest of the money only; it might be a convenient rule if,
as suggested by my lord, the measure of damages in such a case as
this was held, by analogy, to be the average profit made by the use
of such a chattel.” !

[*34]

Sec, 43. Cases in which the principle would apply.

Such a rule, however, would only apply to the case of articles
whose profit consisted in their use, and would be totally inapplicable
to the great majority of cases. Where it did apply, it would simply
be a particular application of the rule in Hadley v. Baxendale, as to
the natural result of the breach of contract. It was upon this very
principle that damages were assessed in Cory v. Thames Ironworks
Company.? So in the case of the Cambrian Steam Packet Com-
pany, where delivery of a vessel had been delayed, the vice-chan-
cellor, following the last-named case, awarded as damages the net
profit which the company might have obtained by chartering the
vessel if she had been delivered at the time contracted for. And
on appeal the lord chancellor said: “That as to the measure of
damages he had proceeded on the principle that if a profit would
arise from a chattel, and it is left with a tradesman for repair, and
detained by him beyond the stipulated time, the measure of dam-
ages is prima facie the sum which would have been earned in the
ordinary course of employment of the chattel in the time.” *

117 C. B, 29; 25 L. J.C. P. 66; Co., L. R., 6 Eq. 396, 408; 37 L. J.
ante, p. 21. Ch. 690.

°L. R., 8 Q. B. 181; 37 L. J. Q.B. 4L, R., 4 Ch. 117, per Lord Carrs,
68; ante, p. 37. Cc.

3 Ex parte Cambrian Steam Packet
52 Generat Prrvcreies or Damage.

Sec. 44. Would exclude exceptional profits.

The rule as to profits, as limited’ by Wits, J., and the chancel-
lor, would probably exclude all special and exceptional profits de-
rivable from the use of the particular chattel, but it would leave
“open the same question which arose in Hadley v. Baxendale.
Where the chattel was itself only part of something else which was
[* 35] rendered useless for want of it, *should the profit of the en-

tire chattel be recovered? If a vessel were delayed in port
for want of a bowsprit, should a loss of freight, to the amount,
perhaps, of thousands of pounds, be obtained in damages? To
this question no answer is supplied by the rule above suggested.

Sec. 45 Question whether motive can bea ground of damage in actions on
contract.

In an action upon a contract or deed, the motive which induced
the violation of the contract cannot be shown, either to increase or
diminish the amount of the recovery.

With the single exception of actions for breach of promise of
marriage, I am not aware of any cases in which it hasbeen held in
England that the motives or conduct of a party breaking a contract,
or any injurious circumstances not flowing from the breach itself,
could be considered in damages where the action is on the contract.
It frequently happens that circumstances of malice, fraud or vio-
lence give rise to an action of tort as an alternative remedy; but
where the plaintiff chooses to sue upon the contract, he lets in all
the consequences of that-form of action.’ It has been held, indeed,
in an action for money had and received, by assignees in bank-
ruptey, for the proceeds of a bill lodged with the defendants by the
bankrupt in order to be discounted, that evidence of a fraudulent
appropriation of it before bankruptcy would preclude their set-off."
But here the evidence went, not to increase the damages, but to
show that the counter-claim was not a case of mutual credit within
the statute.’ In America, however, the contrary doctrine has been

1 Thorpe v. Thorpe, 3B. & Ad. 580. Goodall », Thurman, 1 Head (Tenn.),
In an action for a breach of promise 209; Matthews ». Cribbett, 11 Ohio St.
of marriage, evidence of the subse- 380.
quent seduction of the plaintiffisad- * Buchanan v. Findlay, 9 B. & C.
missible. Matteson v. Curtis, 11 Wis. 738. :
424; Coil», Wallace, 24 N. J, Law, 291; 3 Per Parke, B., 3 B. & Ad. 585.
Misconpuct iv Cases of Conrract.

53

laid down in the State of South Carolina, but is strongly combatted

by Mr. Sedgwick.'

Sec, 46. Failure to make out title on sale of land.

So it was considered at one time, where the vendor of real estate
had failed to make out a good title, and was sued for breach of his
contract to sell, that he would be liable to higher damages if he had
fraudulently or knowingly represented that he had a good title, than

if he had been in ignorance of its defects.
being frequently doubted, has now been finally overruled.’

1 Sedg. Dam., 231 e¢ seg., 4th ed.
? Per BLACKBURN, J., Sikes v. Wild,

1B. & 8. 594; 380 L. J. Q. B. 8803. per

Cocxsurn, C. J., Engel v. Fitch, L.
R., 3Q. B. 327; per Lord CoELMSFORD,
Bain v. Fothergill, L. R., 7 H. L. 206.
There are a class of cases in this coun-
try, in which it has been held that a
distinction is to be made as to the rule
of damages to be recovered against a
vendor who fails to make out a title of
the lands conveyed, in a case where
he acted in good faith, and one where
he acted mala fides. Wheeler v. Styles,
28 Tex. 240; Hall v. York, 22 id. 641.
But we apprehend that in any event,
whether the vendor acted in good faith
or fraudulently, so long as the other
party seeks his remedy upon the con-
tract, he can only recover the purchase-
‘money and interest from the time of pay-
ment. Key v.Key, 3 Head (Tenn.), 448;
Martin v. Wright, 21 Ga. 504; Wright
v. Tompkins, 52 Penn. St. 363, But
contra see Jackson v. Holliday, 3 T. B.
Monr. (Ky.) 363. But when the title
only fails as to part of the land, and
the vendee elects to retain that, the
measure of recovery for the portion to
which the title fails, is the value of
the lands to which the title has failed,
or in other words, such a proportion
of the whole consideration and interest as
the value of that part bears to the whole,
Partridge v. Hatch, 18 N. H. 494; Ela
v. Card, 2 id. 175; Cornell v. Jackson,
3 Cush. (Mass.) 506; Hubbard ». Nor-
ton, 10 Conn. 422; Morris v. Phelps,
5 Johns. (N. Y.) 49; Dickens v. Shep-
® pard, 3 Murph. (N. C.) 526. Thus,
where a contract was made for the pur-
chase of land with a view to the pro-
curement of salt water, and payment
was not made until salt water was pro-

But this doctrine, after
The

cured on part of the land, and the ti-
tle failed as to another part of the land,
it was held that in estimating the dam-
ages the probability that salt water
might be found on that part of the land
was to be taken into account. White
v. Hardin, 5 Dana (Ky.), 141.

Where however a vendor refuses to
convey, it is held that the motive which
induces his failure has an important
bearing upon the question of damages.
If his failure results from unforeseen
causes which he could not control, and no
part of the purchase-money has been
paid it is held, in some of the States,
that the plaintiff is restricted to nominal
damage, but if any part of the purchase
money has been paid, that also should
be recovered; Sweem v, Steele, 5 Iowa,
352; while in others, the value of the
land at the time of breach, with interest
thereon from the time of breach, is held
tobe the measure. Shaw v. Wilkins, 8
Humph. (Tenn.) 647. Therefore if the
value of the land has diminished be-
tween the time when the contract was
made, and when the breach occurs, or if
the value remains identical, nominal
damages only can be recovered, but if
the value of the land has increased, then
the plaintiff is entitled to substantial
damages, to wit: the difference between
the price agreed to be paid, and the
increased value of the land. Brinker-
hoff v. Phelps, 24 Barb. (N. Y.) 100;
Barbour v. Nichols, 3 R. I. 187; Cox v.
Henry, 32 Penn. St. 18; Burr v. Todd,
41id. 206. In Pringle v. Spaulding, 53
Barb. (N. Y.) 17, the rule is held to
be that in an action for the non-per-
formance of an agreement for the sale
of land, the measure of recovery is the
amount already advanced by the pur-
chaser, together with the difference
54

GENERAL Princretes or DAMAGE.

Fraud may give a cause of action for deceit. But as long as the
_ plaintiff chooses to sue for breach of contract, he cannot, by estab-

between the contract price and the
actual value of the premises at the time
when the contract was to have been
performed.

But this is held to be the
proper rule, only in cases where the
vendor fraudulently refuses to convey;
Sweem v. Steele, 5 Iowa, 352; Galev.
Dean, 20 Il. 320; Gates v. Reynolds, 13
Iowa, 1; or where he has conveyed,
but was guilty of fraud in representing
the land to be different in quality or
quantity, from whatit in fact is. Gates
». Reynolds, ante; Brown ». Bigelow,
10 Allen (Mass.), 242. In Louisiana
under the Code, which largely regulates,
or attempts to, the question of damages,
it is held that, when a vendor sells
real estate to which he has no title, the
vendor, if evicted, may recover the
money paid with interest, and the
value of all useful expenses made by him
on the contract. Hale v. New Orleans,
18 La. Ann. 321.

Under a technical breach of a cov-
enant of seizin and right to convey,
merely, the damages are nominal;
Nosler ». Hunt, 18 Iowa, 212; Overhiser
2. McOollister, 10 Ind. 41; and the
same rule prevails in an action for a
breach of the covenant of seizin,
although there is a total failure of the
title so long as the vendee remains in pos-
session under the deed. Hacker v, Blake,
17 Ind. 97; Funk v. Vaneida, 118. & R.
(Penn.) 119; Baxter ». Bradbury,
20 Me. 260; and if he remains in pos-
session until his title is perfected by
the statute of limitations, nominal dam-
ages only are recoverable. Wilson 2.
Forbes, 2 Dev. (N. ©.) 30; Cowan ».
Silliman, 4 id. 46.

If the covenant of seizin in a deed of
warranty is broken, and thereby the
title wholly fails, the law restores to the
purchaser the consideration paid with
interest; but inthis, as in other coven-
ants usual in deeds for the conveyance
of real estate, if there exist facts and
circumstances which would render
the application of the rule inequitable,
they are to be taken into consideration
by a jury, in estimating the damages.

Thus, if the covenant is broken,
and the grantee is enabled to obtain

the seizin by reason of the covenant
of warranty, he cannot retain the
seizin and also recover back the con-
sideration paid. So, if the grantor,
having no title to premises, conveys
them, and afterward acquires a good
title, it immediately inures to the
grantee by way of estoppel; and he
cannot elect to reject the title, and re-
cover the consideration money paid, in
an action for a breach of the covenant
of seizin, but is entitled to only nom-
inal damages, where no actual inter-
ruption of the possession has taken
place, and to the damages actually sus-
tained if any such interruption has oc-
curred. Baxter v. Bradbury, 20 Me.
260.

If a grantee of land by deed of war-
ranty, with the usual covenants, after
continuing in possession of the prem-
ises for many years purchase in an out-
standing, paramount title, with inter-
est paid, he cannot recover for breach
of the covenant of seizin, the consider-
ation originally paid, and interest
thereon, but only the amount last
paid.

And the amount is not affected by
proof that the rents and profits are more
or less than the interest on the consider-
ation originally paid. Spring v. Chase,
22 Me. 505.

In Connecticut, upon a covenant of
seizin, the rule of damages is the con-
sideration paid with interest, but upon
a covenant of warranty, it is the value
of the land at the time of eviction;
Sterling v, Peet, 14 Conn. 245; but gen-
erally the rule is that in case of eviction
by title paramount the rule of damages
is the price paid with interest, and the
costs consequent upon eviction ; Logan 2.
Moulder, 1 Ark. 313; Pearson v. Davis,
1M’ Mull. (8. C.) 87; Bickford ». Page,

2 Mass. 455; Leland 2. Stone, 10 a.
460; Blake ». Burnham, 29 Vt. 487;
Nutting v. Herbert, 35 N. H. 120;
with nothing for inconvenience or
loss to the vendee which he has
sustained,in his improvements, how-:,
ever expensive or permanent. Pear-
son v. Davis, ante. Where the land is
paid for in property, or in labor, and no
special price is fixed, the measure of re-
Misconpvor ry Cases or Contract.

55

lishing misconduct on the part of the defendant, alter the rule by
which damages for breach of contract are to be assessed.

covery is the value of the land and not
the value of the property ‘paid. Thus,
where the plaintiff sold the defendant
a horse for $200, $100 to be paid in
money and $100 by the conveyance of
a certain piece of land, and the defend-
ant refused to convey the land, the
court held that the plaintiff was enti-

tled to recover the value of the land,
and was not restricted to $100. Rutan
o. Hinchman, 29N.J. Law, 112. See,
also, Rohr v. Kindt, 3 W. & 8. (Penn.)
563, where the same rule was adopted
when a conveyance was agreed to be
made if the plaintiff would perform
certain services.
56 GeneRAL Princietes or Damaae.

CHAPTER III.

GENERAL PRINCIPLES OF DAMAGES FOR TORTS.

Src. 47. Rule of damages in actions of tort.
48. Motive admissible as an element in estimating damages.
49. Whether damages are a compensation or a punishment.
50. Inquiry whether damages in cases of tort are a compensation or 3
penalty.

Sec. 47. Rule of damages in actions of tort.
[36 J * Actions of tort, as we have observed before, are governed
by far looser principles. Even here, however, in many
cases, the measure of damages is as accurately ascertainable as in
actions on a contract. Torts are divisible into three classes: injuries
to the property, person, or character. Those of the former class
may be mingled with ingredients which will enhance the damages to
any amount. For instance, a man’s goods may be seized under cir-
cumstances which involve a charge of a criminal nature ;' or a tres-
pass upon land may be attended with wanton insult to the owner.’
Any species of aggravation will of course give ground for additional
damages. In general, however, injuries to property, when unat-
tended by circumstances of this sort, and especially when they take
place under a fancied right, are only visited with damages propor-
tioned to the actual pecuniary loss sustained. On the other hand,
where the person or character is injured, it is difficult, if not quite
impossible, to fix any limit, and the verdict is generally a resultant
of the opposing forces of the counsel on either side, tempered by
such moderating remarks as the judge may think the occasion
requires. It must not be supposed, however, that even cases of this
sort are quite beyond rule. If it were so there could be no such
thing as new trials for excessive damages. The difference is that in
cases of contract, and in some cases of tort to the property, a rule
can be applied to the facts so accurately as to make the amount a
mere matter of calculation. In the other class of offenses, the rule

1 Bracegirdle ». Orford, 2 M. & 8. * Merest v. Harvey, 5 Taunt. 442,
77.
57

Aotions or Tort.

goes no further than to point out what evidence may be admitted,
and what grounds of complaint may be allowed for. But when this
is done the amount of damages is entirely in the disposition of the
jury. A new trial will only be granted when the verdict is so large
as to satisfy the court that it was perverse, and the result of gross
error; and to prove that the jury have acted under the influence of
undue motives or misconception.!

Sec. 48. Motive admissible as an element in estimating damages.

One marked distinction between actions of contract and tort
*is that in the former, as we have seen, evidence of malicious [#37]
motive is not admissible, in the latter it is.» There are,
indeed, some observations of Poxxocx, C. B., in a later case,’ where
he expressed a doubt whether the motive of the defendant had any
bearing upon the matter, and said that the plaintiff was only enti-
tled to compensation in proportion to the injury he had received.
It was not necessary, however, to decide the point in the particular
case, which merely established that in an action against two, the
motive of one cannot be matter of aggravation against the other.*
It is conceived that the practice against which the dictum in ques-

1 Gough ». Farr, 1 Y. & J. 477.

? Sears v. Lyons, 2 Stark. 317; Pear-
son v. Lemaitre, 5 M. & G. 700; War-
wick v, Foulkes, 12 M. & W. 507;
per Pottock, C. B., 13 M. & W.
51,

3 Clark », Newsam, 1 Ex. 131, 139.

4 Nor ought the motive of an agent
to be matter of aggravation against the
principal. Carmichael v. Waterford
and Limerick Ry. Co., 13 Ir, L. R. 313.

In the case of negligence simply, or
any tort not accompanied with malice,
fraud or willfulness, the recovery
should be restricted to actual dam-
ages. Goetz v. Ambs, 27 Mo. 28;
Moody v. McDonald, 4 Cal. 297; Wil-
liams v. Reil, 20 Ill. 147; Allison o.
Chandler, 11 Mich. 542; Kentucky,etc.,
R. R. Co, v. Dills, 4 Bush (Ky.), 593;
Mickle v. Miles, 1 Grant’s Cas. Penn.)
320. Thus, where an injury is received
by a passenger upon a railway train,
resulting merely from the negligence
of the company’s servants, the recov-
ery should be restricted to compensa-
tion; Kentucky, etc., R. R. Co, o. Dills,

8

ante; nor indeed in any case should
any more than actual damages be given
in an action against the principal for
the acts of his servants or agents, uno-
less the act producing the injury is
either expressly or impliedly authorized
by him; Hagan». Providence R. R.
Co., 3 R. I. 88; Wardrobe ». Stage
Co., 7 Cal. 118; but, asin no case is
the master responsible for the acts of
the servant unless it was expressly or
impliedly authorized by him, the value
of this exception is hardly appreciable.
In Pennsylvania R. R. Co. v. Kelly, 31
Penn. St. 372, where a father brought
an action against a railroad company
for injuries to his child, it was held
that he could only recover compensa-
tory damages to be measured by the
loss of the child’s services, and his ex-
penses in nursing and curing him, and
could be allowed nothing for his lacer-
ated feelings or his disappointed
hopes. But he may recover the ex-
penses of the sickness of the child’s
mother brought upon her by her grief
in consequence of the negligent killing
58

GunrraL -Princietes of Damaae.

tion was directed is too firmly settled, both by reason and precedent,
to be overthrown; in fact it could not be overthrown without de-
stroying at the same time that large class of actions in which malice

of the child; Ford ». Munro, 20 Wend.
(N. Y.) 210; but damages for lacera-
ted feelings induced in either or both
the parents in consequence of injuries
to the child are not recoverable. Cow-
den v. Wright, 24 Wend. (N. Y.) 429;
Pierce v. Millay, 44 T1189. So where
property is wrongfully taken upon a
legal process, but without circumstan-
ces of malice or oppression, only actual
damages are permissible; Sanders 2.
Anderson, 10 Rich. (8S. C.) Eq. 232;
Snow 2. Grace, 25 Ark. 570; Blodgett
». Brattleboro, 30 Vt. 579; Engle v.
Jones, 51 Mo. 316; Biggs o. D’Aquin,
13 La. Ann. 21; Wanamaker v. Bowes,
36 Md. 42; Berveridge v. Welch, 7 Wis.
465; Phelps 2, Owens, 11 Cal. 22; and
the same is true of any trespass that is
not actuated by fraud or malice. Hays
vo. Askew, 7 Jones’ (N. C.) L. 272. But
whenever the injury complained of is
the result of the fraud, malice, willful
or wanton act of the defendant, and the
circumstances of the case are such as
call for such damages, vindictive dam-
ages may be given. The general rule
is that, when the injury has been in-
flicted maliciously or wantonly, and
with circumstances of contumely or
indignity, the jury are not restricted
to actual damages, but may give such
damages in addition thereto as the
circumstances of the case seem to war-
rant, to deter others from the commis-
sion of like offenses. Phila. R. R. Co.
2. Quigley, 21 How. (U. 8S.) 202; Gra-
ham v. Roder, 5 Tex. 141; Hodgson ».
Millward, 3 Grant’s Cas. (Penn.) 406;
Burkett »o. Lanata, 15 La, Ann. 337;
Dibble v. Morris, 26 Conn. 416; Hop-
kins 0, Atlantic R. R. Co., 86 N. H.9;
Kountz v. Brown, 16 B. Monr. (Ky.)
577; Fleet v. Hollenkamp, 13 id. 219;
Bell ». Morrison, 27 Miss. 68; De-
Vaughn o. Heath, 87 Alu. 595; Dickey
o. McDonnell, 41 Ill. 62; Baltimore,
etc,, R. R. Co. v, Blocher, 27 Md. 277;
Cochran ». Miller, 13 Iowa, 128; Pike
». Dilling, 48 Me. 539; and this applies
to all actions ex delicto; Birchard ».
Booth, 4 Wis.67; McWilliams v. Bragg,
3 id. 424; Barnett o, Reed, 51 Penn.
St. 190; Hoadley v. Watson, 45 Vt.

289; Walker v. Wilson, 8 Bosw. (N. Y.
Supr. Ct.) 586; Dalton »o. Beers, 38
Conn. 529.

In an action of trespass, the question
whether it was wantonly or willfully
committed, is important to be consid-
ered in measuring the damages, as
where the wrong is wanton or willful,
the jury are authorized to give an
amount of damages beyond the actual
injury sustained, as a punishment, and
to preserve the public tranquillity. But
when the wrong-doer acts in good
faith, with honest intentions, and with
prudence and proper caution, and he
invades the rights of others, so as to
render himself liable to the action, pre-
ventive or exemplary,damages are im-
proper. Hawk o. Ridgway, 33 I]1.473;
Green v. Craig, 47 Mo. 90.

In an action for false imprisonment,
there was evidence that the plaintiff
was arrested and imprisoned for refus-
ing to testify under a void complaint,
that he was placed in the custody of
the sheriff at the jail, but was not
locked in the cell which was given him
asasleeping room, and was allowed
to visit freely the sheriff’s apartments,
being only restrained from leaving the
jail-yard. It was held that the court
erred in instructing the jury, that, if
they believed this, the plaintiff could
only recover nominal damages; 7. e¢.,
sufficient to pay him for his loss of
time in consequence of the arrest.

The court can never confine a jury
to either nominal or special damages,
but if there has been a real personal
injury, the jury are entitled and re-
quired to find such general damages as
they deem appropriate, as well as any
special damages, which are proved to
their satisfaction. Page ». Mitchell,
13 Mich. 63,

In McCall ». McDowell, 1 Abb. (U.
8.) 212, it was held that exemplary
damages for false imprisonment could
not be given when there was no evil
intention.

A charge that vindictive damages
cannot be given for trespass upon land
unless the trespasser entered the land
maliciously, in a rude, aggravating, or
Actions oF Tort.

59

is the whole gist of the offense. Where a party has been arrested,
sued, or prosecuted without cause, the injury is clearly the same to

him, whether the act be malicious or not.

insulting manner, erects too strict a
standard of liability. Trespass may be
so wantonly or recklessly committed
as to justify the imposition of vindict-
ive damages without any evidence of
actual malice, and the question as to
whether vindictive damages shall be
given must depend upon all the cir-
cumstances of each particular case.
Devaughn ». Heath, 37 Ala. 677.

Thus when a person enters upon the
land of another and cuts timber there-
on the recovery is not limited to the
actual value of the timber, but a recov-
ery may be had not only compen-
satory, but preventive in its character.
Kolb v, Bankhead, 18 Tex. 228.

In a case where an armed body of
men broke into a store, took away the
stock, put the owner in fear of bodily
harm, and threatened his life if he re-
sisted, and injured his business, they
were held liable not only for the value
of the property taken, but also for
punitive damages for breaking and
entering the store, seizing the prop-
erty, putting the owner’s person in
danger, breaking up his stock, and
injuring his business, and annoying
and disturbing him. Freidenheit 2.
Edmundson, 36 Mo. 226.

Actual malice need not exist in or-
der to entitle a party to punitive dam-
ages; if the act is wantonly or reck-
lessly done, vindictive damages may

be given, although there is no actual:

malice shown. Dickey v. McDonnell,
41 Ill. 62; Farwell ». Warren, 51 id.
467. Any act conceived in a spirit
of mischief, or in evident disregard of
the rights of others, or of civil or so-
cial obligations, comes within the idea
of a malicious act. Dibble ». Morris,
26 Conn. 416; Hopkins v. Atlantic,
etc., R. R. Co., 36 N. H. 9; Bell o.
Morrison, 27 Miss. 68; Welch ». Du-
rand, 36 Conn, 182; N.O., etc., R. R. Co.
v. Statham, 42 Miss. 607. Every per-
son is presumed to know the law, and,
- when he violates it, is presumed to
have acted with general malice. Far-
well». Warren, 51 Ill. 467; Green 2.
Craig, 47 Mo. 90. But, in order to
warrant a jury in giving vindictive

Yet, unless malice be

damages, something more than mere
unlawfulness must be shown; there
must be evidence, either of .malice,
fraud, wantonness, or oppression. The
act must have been done under such
circumstances as to show a disregard
for the rights of others, or an intention
to set at defiance the legal rights of
others, or the ordinary obligations of
society. N. O., etc., R. R. Co. v. Sta-
tham, 42 Miss. 607; Green ». Craig, 47
Mo. 90; Welch ». Durand, 36 Conn.
182. Thus, in all cases where such
damages are proper to be given, the
jury should always be directed to have
in view the nature of the offense, the
circumstances attending it,and, in some
cases, the standing of the parties, and
make the damages as nearly commen-
surate with the nature of the offense
in view of all the circumstances as pos-
sible. Burkett ». Lanata, 15 La. Ann.
337. The principle upon which these
damages are given, is that, through
this species of punishment, the inter-
ests of society are protected, at the
same time that the party sustaining
the injury is compensated therefor, and.
that in this way people are, in a meas-
ure, at least, deterred from committing
that species of injuries that partake of
both civil and criminal elements; Cole
v. Tucker, 6 Tex. 266; Htchberry v.
Levielle, 2 Hilt. (N. Y.) 40; and the
fact that the defendant is liable to
prosecution criminally for the act or
that he has been so punished therefor,
is no bar to such recovery. Hoadly
v. Watson, 45 Vt. 289; Wilson v. Mid-
dleton, 2 Cal. 54; Cook ». Ellis, 6 Hill
(N. Y.), 466; Jefferson v. Adams, 4
Harr. (Del.) 321; McNamara v. King,
7 Ill. 482; Edwards v. Leavitt, 46 Vt.
126; Roberts v. Mason, 10 Ohio St.
277,

But this rule is by no means uni-
form, and in a comparatively recent
decision in New Hampshire, Fay 0.
Parker, 53 N. H. 342, the court held
that punitive damages are not recover-
able, where the defendant is also liable
to be punished criminally for the act.
But, although the opinion of the court
is able, long and exhaustive, yet it is
60

GerneraL Princretes or Damaaz.

not only alleged but proved, an action for the arrest, etc., will not
be maintainable! If then malice can render an innocent act wrong-
ful, a fortiort it must render a wrongful act more wrongful, and
therefore be provable in aggravation of damages.

not believed that it presents any good
reason for this exception. A similar
doctrine isheldinIndiana, Struble v.
Nodwift, 11 Ind. 64; Humphries v.
Johnson, 20 id. 190; Taber v. Hutson,
5 id. 322. In a later case, in New
Hampshire; Bixby v. Dunlap, 56 N. H.
456; the rule in Fay v. Parker is very
much weakened. In the latter case,
the court say: ‘‘Calling damages al-
lowed in tort on proof of actual mal-
ice, vindictive, exemplary or punitive,
does not import that they are allowed
by way of punishing the defendant, for
the offense against society involved in his
wrong. They are allowed because malice
aggravates the wrong done to the plaintiff.
And they are sometimes called vindict-
ive, because they have a tendency to
satisfy the just indignation of the
plaintiff and jury, and sometimes called
exemplary because they tend to call
public attention to the wrong and the
remedy; and punitory, because al-
though intended by law to operate
as compensation, they are felt as pun-
ishment by the defendant.” Jn Ward
». Ward, 41 Iowa, 686, the court say:
‘‘Punitive damages may be recovered
in a civil action for a wrongful act,
notwithstanding the act constitutes an
offense punishable under the criminal
statutes. The public good in the re-
straint of others from wrong-doing, as
well as the punishment of the offender,
is to be considered.”

When it is said that, in order to re-
cover vindictive damages, malice must
be shown, it is not meant that actual
malice must be proved to have existed,
but that something more than mere
unlawfulness must beshown. That the
circumstances must have been such as
to indicate wantonness, or a willful
disregard of the rights of others; an
act done without circumstances of
mitigation or excuse. Brown». Allen,
85 Iowa, 306; Moore v. Crose, 43 Ind.
30; Stilwell » Barnett, 60 Ill. 210;
Tripp v. Grouner, 60 id. 474; Hamil-

1 Reynolds v. Kennedy, 1 Wils, 233;

181.

ton », Third Av. R. R. Co., 53 N. Y.
25; Jones v. Turpin, 6 Heisk. (Tenn.)
There is a disposition in some of
the courts to refuse to allow such dam-
ages in a case where the party is also
liable to punishment criminally, for the
same cause. But neither the wisdom,
policy, nor reason of the execution of
the rule are apparent, nor do they com-
mend it to favorable reception. Smith
v. R. R. Co., 28 Ohio St. 10; Fay o.
Parker, 53 N. H, 342; Lucas v. Flinn,
35 Iowa, 9; Mooney v. Kennett, 19 Mo.
551.

In actions for assault and battery
exemplary damages may be given, and
evidence to show circumstances in ag-
gravation is always admissible; but,
generally, instead of vindictive or ex-
emplary damages, the jury are instruc-
ted that, in estimating the damages
they may take into consideration the
circumstances surrounding the trans-
action, and when they are of an ag-
gravating character, may give dam-
ages in excess of the actual damage by
way of aggravation, which, in effect,
although not in name, is an allowance
of exemplary damages. Dickey v.
McDonnell, 41 Ill. 62; Keyes v. Devlin,
3 E. D. 8. (N. Y.) 518; West o. For-
rest, 22 Mo. 344; Wilson». Middleton,
2Cal. 54; McNamara ». King, 7 Ill.
432; Cook o. Ellis, 6 Hill (N. Y.), 466;
Whitney v. Hitchcock, 4 Den. (N. Y.)
461; Causee 2 Anders, 4 Dev. &B.
(N. C.) 246; Reeder ». Purdy, 48 Ill.
261. In actions for injuries resuiting
from the negligence of another, exem-
plary damages are not recoverable un-
less the act or omission was of such a
wanton character that it might prop-
erly be said to be willful. Mere neg-
ligence is not enough. It must be
such as shows an utter disregard of
the safety of those liable to be affected
thereby, and such as is entirely incon-
sistent with the duties which the per-
son or corporation owes to third per- —
sons. Penn. R. R. Co. v. Ogier, 35

De Medina », Grove, 10 Q. B. 152.
Actions or Tort.

61

Sec. 49. Whether damages are a compensation or a punishment.

This seems to decide an important question, viz., whether dam-

ages are a compensation or a punishment.

In case of contract, as

we have seen, they are only a compensation, and frequently a very

Penn. St. 60; Telfer v. Northern R. R.
Co, 30 N. J. 188; Pierce v, Millay, 44 IIL
189; Goetz v, Ambs, 27 Mo. 28; Floyd
v. Hamilton, 33 Ala. 235; St. Peter’s
Church v, Beach, 26 Conn. 355; Allison
». Chandler, 11 Mich. 542;° Penn. R.
R. Co. v. Kelly, 31 Penn. St. 372; Sla-
ter o. Sherman, 5 Bush (Ky.), 206.
Thus, in an action against a physician
for malpractice, the measure of dam-
age cannot be increased by an award
of exemplary damages; Long v. Mor-
rison, 14 Ind. 595; unless gross negli-
gence isestablished. Cochran v. Mil-
ler, 13 Iowa, 128. So, in a case where
a defendant placed a young child in a
buggy ina perilous position, and, in
consequence, the child was thrown
out and injured, in the absence of
malice, it was held that exemplary
damages could not be awarded,
Pierce v. Millay, 44 Ill. 189. And in
no case of negligence simply, unac-
companied by fraud or malice, can
damages be given beyond the actual
damage. Goetz v. Ambs, 27 Mo. 28;
Moody v. McDonald, 4 Cal. 297. But
where the injury isinflicted wantonly,
maliciously, or under circumstances
showing a flagrant disregard of the
tights of others, or of the duties which
the law imposes upon the defendant,
vindictive damages may be given.
Kountz v. Brown, 16 B. Monr. (Ky.)
577; Phila., etc., R. R. Co. v. Quigley,
21 How. (U. 8.) 202; Dibble o. Mor-
ris, 26 Conn. 416; Wallace ». Mayor,
etc., 2 Hilt. (N. Y.) 440; Dickey ».
McDonnell, 41 Ill. 62.

In actions for deceit, exemplary
damages may be given where it is
shown that the defendant willfully
purposed to deceive and defraud the
plaintiff. Nye o.Merriam, 35 Vt. 438,
But, ordinarily, in such actions, the
damages are confined to the actual
loss; and in order to warrant the giv-
ing of vindictive damages the cir-
cumstances of fraud and willful de-
sign on the one hand, and of hardship
and injury on the other, must be
clearly shown, Carr v. Moore, 41 N.

H. 131; Warren v. Cole, 15 Mich. 265.
In actions for false representation the
measure of damage is the actual loss
resulting therefrom, and exemplary
damages are not permissible. Bow-
man v. Parke, 40 Vt. 410; Moberly v.
Alexander, 19 Iowa, 162; Haight o.
Hayt, 19,N. Y. 464; Spikes v, Eng-
lish, 4 Strobh. (8S. C.) 34; Foster». Ken-
nedy, 38 Ala. 359; Reynolds v. Cox,
11 Ind. 262. In actions for libel or
slander, exemplary damages may be
given, when actual malice is proved,
whether the words were actionable per
se, or otherwise. Guard v.Risk, 11 Ind.
156; Knight v. Foster, 39 N. H. 579;
Harbison », Shook, 41 Ill. 142; Hunt
». Bennett, 19 N. Y. 173; Littlejohn v,
Greeley, 22 How. Pr. (N. Y.) 845. So
in actions for false imprisonment,
where bad faith or malice on the part
of the defendant is shown. Blythe ».
Tompkins, 2 Abb. Pr. (N. Y.) 468;
Brown ». Chadsey, 39 Barb. (N. Y.)
253; Jay v. Almy, 1 W. & M. (U. 8.)
262; but not where the imprisonment
did not result from any wrongful
motive on the part of the defendant.
Jay v. Almy, ante; Osborne ». Moore,
12 La. Ann, 714. In actions for mali-
cious prosecution; Ziegler v. Powell,
54 Ind. 173; assault by throwing vit-
tiol in a person’s eyes; Munter v.
Bande, 1 Mo. App. 484; for mali-
ciously setting fire to a person’s woods,
barns or houses; Smalley v. Smalley,
81 Ill. 70; against an innkeeper for
wrongfully turning a guest out of his
inn; McCarthy v. Niskern, 22 Minn,
90; a willful trespass to real estate;
Smith ». Wunderlich, 70 Ill. 426; or,
indeed, for any tortious act, involving
wantonness, malice or fraud on the
part of the defendant, exemplary
damages may properly be given.
Boardman v. Goldsmith, 48 Vt. 403.
Thus, where in an action against
a colonel of militia, for ordering the
plaintiff, a common soldier, to be
whipped, it appeared that the colonel
had acted unjustifiably and illegally,
and out of mere spite and revenge,
62

inadequate one.

GENERAL Principles or Damagn.

In cases of tort to the property, where there are

no circumstanses of aggravation, they are generally the same, as will
be seen hereafter." Where the injury is to the person, or character,

and the jury gave £150 damages, and
a new trial was moved for on the
ground that the man appeared to have
been moderately punished, and not
much hurt, arid that the damages were
disproportioned to his sufferings, the
court refused the application, because
the man was scandalized and disgraced
by such a punishment. Benson v.
Frederick, 3 Burr. 1847. «

Wherever injury has been done to the
fair fame, reputation or character of
the plaintiff, juries are generally in-
vited to give, and are justified in
giving, such a sum as marks their
sense of the maliciousness or reckless-
ness of the wrong-doer in offering the
insult and injury; their belief in the
~groundlessness of the charge; and
their desire to vindicate the character
of the plaintiff. Doe ». Filliter, 13
M. & W. 51. Thus, in all actions of
libel and slander, where the object of
the plaintiff is to clear himself from
aspersions that have been cast upon
him, the jury are in the habit of giving
Jjarge damages, with a view of vindi-
eating the plaintiff's character from
the aspersions cast upon it. And in
an action for oral slander, where the
cause of action rests upon special
damage alleged and proved, the jury,
in assessing their damages, are not
limited to the amount of special dam-
ages proved, but may give their ver-
dict for general damages, which would
in their judgment be the natural and
probable result of it. They must,
however, éxclude from their considera-
tion damages resulting from the repe-
tition of the slander by third persons.

The fact that the action is against
a principal for an act of his servant
does not preclude a recovery for ex-
emplary damages, if the act is one
done within the scope of the servant’s
real or apparent authority, or in the
line of his duty. See Wood’s Law of
Master and Servant, pp. 666-669.

In many instances it has been held,
not only that the master is liable for
the wanton and malicious acts of his

servant in the execution of the author-
ity given him by the master, but also,
that in all such cases the wantonness
and malice may be shown to enhance
the damages, This question was
quite recently considered by the
supreme court of Massachusetts in
Hawes v. Knowles, 114 Mass. 518,
in an action, against the proprietor of a
stage coach, for an injury occasioned
by the defendant’s servant in wanton-
ly, as well as carelessly and negli-
gently, driving against the plaintiff's
wagon. Gray, J., in passing upon
the question of the liability of the
master for acts wantonly done by the
servant, said: ‘‘A master is respon-
sible for a wrongful act done by his
servant in the execution of the au-
thority given by the master, and for
the purpose of performing what the
master has directed, whether the
wrong done be occasioned by the mere
negligence of the servant, or by a
wanton and reckless purpose to ac-
complish the master’s business in an
unlawful manner. Howe v. New-
march, 12 Allén (Mass.), 49; Rams-
den v. Boston & Albany R. R. Co., 104
Mass. 117; Byram v. McGuire, 3 Head

(Tenn.), 530.

In an action of tort for a willful in-
jury to the person, the manner and
manifest motive of the wrongful act
may be given in evidence as affecting
the question of damages, for, when
the merely physical injury is the same,
it may be more aggravated in its effects
upon the mind, if it is done in wan-
ton disregard of the rights and feel-
ings of the plaintiff, than if it is the
result of mere carelessness.” This
question, as to the recovery of puni-
tive damages against the master for
wrongful and wanton act of the ser-
vant, was raised and very ably dis-
cussed bythe supreme court of Maine;.
Goddard v. Grand Trunk Railway
Co., 57 Me. 202; 2 Am. Rep. 39; and
after a very full and careful considera-
tion of the question, it was held that
exemplary damages were recoverable,

1 See post, c. 13.
Actions or Tort.

69

or feelings, and the facts disclose fraud, malice, violence, cruelty, or
the like, they operate as a punishment, for the benefit of the com-

munity, and as a restraint to the transgressor.

and it may be regarded as settled by
the better class of cases, that, when-
ever exemplary damages would be re-
coverable, if the act had been done by
the master himself, they are equally
recoverable when the act was done by
his servant. Railroad Co. v. Hurst,
36 Miss. 660; Hopkins ». Atlantic &
St, Lawrence R. R. Co., 36 N. H. 9;
Goddard v. Grand Trunk R. R. Co.,
ante; Hawes v. Knowles, ante ; Rail-
road Co. v. Blocher, 27 Md. 277. A
contrary doctrine would be inconsist-
ent and opposed to principle. The
very ground upon which the master’s
liability rests is, that he authorized
the act, and can it be said that a per-
son can permit a wrongful act by the
agency of another, and shield himself
from any of the legal consequences?
The ground upon which exemplary
damages are given is that the interests
of society require that wanton and
wrongful acts should be discouraged ;
consequently, in such cases, the jury
are left to give such damages in addi-
tion to the actual damage as will dis-
courage others from the commission of
similar acts. Does not the reason and
policy of the rule apply in a case
where the act was done by the author-
ized agency of another, as well as
where the act is done by the princi-
pal himself? If there is any reason or
necessity for the giving of punitive
damages at all, that reason and neces-
sity applies equally in either case.
New Orleans, etc., R. R. Co. ».
Hurst, 36 Miss. 660; Goddard », Grand
Trunk Railway Co., ante; Atlantic &
Great Western R. R. Co. 2. Dunn, 19
Ohio St. 162; 2 Am. Rep, 382. ‘It
is well established,” says Worpgy, C.
J., in Jeffersonville R. R. Co. v. Rogers,
38 Ind. 116; 10 Am. Rep. 103, “ that
vindictive or exemplary damages
may be given against corporations for
the tortious and wrongful acts of their
agents.” In New Orleans, etc., R. R.
Co. v. Hurst, ante, the plaintiff had
taken passage on the defendant’s cars
at New Orleans, to be carried to
Quin’s depot in the county of Pike, in
the State of Mississippi. The train

ran past the depot without stopping,
and those having it in charge refused
to return to the depot, and compelled
the plaintiff to leave the train. For
this he sued, and recovered a judg-
ment of $4,500, and the judgment was
affirmed. The court say, amongst
other things, “it is the peculiar prov-
ince of a jury to assess damages, and
when, as in actions sounding in dam-
ages merely, the law furnishes no
legal rule of measurement, save their
discretion, under the evidence before
them, it is very rare indeed that a
court will feel itself justified in set-

‘ting aside a verdict merely for excess,

Itis not enough that, in the opinion
of the court, the damages are too high.
It may not rightfully substitute its
own sense of what would be reason-
able compensation for the injury, for
that of the jury. The jury are allowed,
and indeed it is their duty, in all such
cases where the law provides no other
penalty, to consider the interests of
society, as well as justice to the plain-
tiff, and by their verdict, while they
make just compensation for thie
private injury, also to inflict proper
punishment for the disregard of pub-
lic duty.” Day 0. Woodworth, 13
How. (U. 8.) 368; Hopkins v. Atlan-
tic & St. Lawrence R. R. Co., 36 N.
H. 9; Railroad Co. v. Bloeher, 27 Md.
277; Hawesv. Knowles, 114 Mass.
518; Goddard v. Grand Trunk R. R.
Co., ante.

In New York it is held that com-
pensatory damages only are recover-
able, unless the master has himself
been guilty of some gross misconduct,
either in the employment or retention
of the servant, or in the orders given
him, or by ratifying or assenting to his
act afterit is done. It is held that
in order to warrant punitive damages
the master’s conduct, in these respects,
must have been more than merely neg-
ligent; that they must have been
reckless and of a criminal nature.
Cleghorn v. N. Y. C. R. RB. Co., 56 N.
Y. 44. Dantes, J., in Peck v. R. R.
Co., 6 T. & C. (N. Y.) 409, laid down
the rule as follows: ‘‘In order to

°
"64

GernerAL Princretes or Damage.

Sec. 50. Inquiry whether damages in cases of tort are a compensation or a pen-

alty.

[#38 ]

*It must be admitted that many expressions are to be found
in which judges have directed juries merely to give a com-

pensation to the plaintiff. In one instance, ALprerson, B., refused in
an action of crim. con. to allow evidence of the defendant’s prop-
erty with a view to increased damages, saying that it was not a ques-

justify the jury in going beyond a
mere compensation of the plaintiff, by
their verdict, the evidence should
show the conduct of the persons,
who removed him from the train, to
have been wanton, vindictive, malic-
ious, oppressive or cruel. That is
a fact to be proved either by
direct or indirect evidence. If it is
not established, then the verdict
should be limited to what would be
fair and reasonable compensation for
the actual injury sustained. The
amount of that cannot be arbitrarily
fixed, in cases like the present one,
but it must be left to the discretion,
judgment and good sense of a jury.
And where the amount is fairly fixed
in that manner, the verdict cannot
properly be interfered with by the
court. Where intentional misconduct
or gross incivility,or rudeness is shown,
then the jury may, and often should,
as a proper safeguard for the public,
and by way of punishing positive or
intentional misconduct, go beyond
mere compensation by their verdict,
and give the plaintiff such an amount
as will have the effect of checking and
restraining similar violations of private
rights on the part of others, and pro-
vide an adequate degree of punishment
for the acts forming the subject of
complaint. But in the exercise of
this authority, the jury are to be lim-
ited to the reasonable result of intel-
igence, judgment and experience. If
they go so far beyond it as to warrant
the conclusion that prejudice, partial-
ity, excitement, or bias, controlled
their action, then it is the duty of
the court to interfere, and set aside the
verdict, and send the case before an-
other jury.” Brown v. Chadsey, 39
Barb. (N. Y.) 253; Murray v. Hudson

a

River Railroad Co., 47 id. 196. In
New Hampshire it is held that, where
injuries result from gross negligence
on the part of servants of a railroad
company in the operation of their
trains, exemplary damages may be

given. Taylor v. R. R. Co., 48 N. H.
30c.
Exemplary damages are not a mat-

ter of right; Snow v. Carpenter, 49 Vt.
426; Boardman v. Goldsmith, 48 id.
403; but may be given or not in the
discretion of the jury. They cannot
be given independent of the general
or special damage, but as a part there-
of, and a verdict that finds a certain
sum as actual, and a certain sum as
exemplary damages, is erroneous. Bix-
by v. Dunlap, 56 N. H. 456. And ex-
emplary damages cannot be given
where there is no actual damage. Far-
well v. Warren, 70 Ill. 28; Freese v.
Tripp, id. 496. In ascertaining the
amount that shall be awarded as ex-
emplary damage, the jury may consider
the defendant’s pecuniary condition
and this may be shown not for the
purpose of showing how much he is
able to pay, but that the jury may
determine how much his rank and in-
fluence in society and the extent of
the injury are increased thereby and
it is erroneous to instruct the jury that
in fixing exemplary damages they may
take into consideration the pecuniary
ability of the defendant to pay.
Smith v, Wunderlich, 70 Ill. 426;
Jones v. Jones, 71 id. 562; McCarthy
v. Niskern, 22 Minn. 90. In fixing the
amount of exemplary damages regard
must be had to the extent of the want-
onness or malice evinced by the de-
fendant. Boardman v. Goldsmith, 48
Vt. 408,
Actions or Tort. 65

tion in the cause.' Asa matter of practice there is no doubt that
juries always measured their damages in such cases by tlfe condition
of the defendant; and the practice was expressly sanctioned by the
authority of Butuer, J.,? who said that in crim. con. the condition
of the defendant, and his being a man of substance, were proper
circumstances of aggravation. This would have been absurd if
damages were only a payment for an injury; but if they were a pen-
alty for a wrong, it would be quite just, because the penalty must
be proportioned to the means of the offender. So the numberless
cases in which damages, totally disproportioned to the actual harm
inflicted, have been given and sanctioned where the act was of a
grossly unconstitutional nature, or attended with studied insult,* can
only be accounted for on the same principle; accordingly we find
Wuor, C. J., saying in a case of seduction, “ Actions of this sort
are brought for example’s sake ; and although the plaintiffs loss in
this case may not really amount to the value of 20s., yet the jury
have done right in giving liberal damages.”* And the same doc-
trine, that damages may in such cases be inflicted “for example’s
sake, and by way of punishing the defendant,” has been repeatedly
laid down in America, and is sanctioned by the high authority of
Kent, C. J., and Story, J.° In fact, * if any other rule existed,
aman of large fortune might, by a certain outlay, purchase the
right of being a public tormentor. He might copy the example of the
young Roman noble mentioned by Gibbon, who used to run along
the Forum striking every one he met upon the cheek, while a slave
followed with a purse, making a legal tender of the statutory shil-

[*39 ]

ling!

1 James v. Biddington, 6 C. & P.
590; Whitfield v. Westbrook, 40 Miss.
311.

°B. N. P. 27.

8 See various instances, post, p. 514,
et seq.

4Tullidge v. Wade, 3 Wils. 18.
Where a railway company had ob-
structed a siding belonging to an ad-
joining land-owner with a high hand,
and in violation of his rights under an
Act of Parliament, Wuiuuts, J., and
Byss, J., were of opinion that exem-
plary damage might justly be given,
the latter saying, ‘“ Where a wrongful
act is accompanied by words of con-

9

tumely and abuse, the jury are war-
ranted in taking that into considera-
tion and giving retributory damages.”
Bell v. Midland Ry. Co., 10 C. B. (N.
8.) 287, see p. 308; 30 L. J. C. P. 278.
And liberal damages were allowed to
be given against one who negligently
and recklessly pulled down Juildings
on his own land, so as to injure his
neighbor, with a view to make him
give up possession. Emblem v. Myers,
6H. &N. 54; 30 L. J. Ex. 71.

®Sedg. Dam. 459-464, where the
decisions are cited, p. 525, et seq.,
4th ed.
66

Sxc. 51

52.
53.
54.
55.
56.
57,
58.
59.
60.
61.
62,
63.

64.
65.
66.
67.
68.
69.
70.
71.
72.
73.

74.
75.

76.
77.

78.
79,
80.
81.
82.
83.
84.

GernERAL Principtes or Damaas.

CHAPTER IV.

REMOTENESS OF DAMAGES.

. Damage must not be too remote.

General principle.

Damage must be the immediate result of the act complained of.

Negligence causing personal injury.

Wilson v. Newport Dock Company.

When profits may be allowed for and when not.

Difference between primary and secondary profits.

Cases where profits not allowed for. Losing chance of a prize.

Scotch law as to profits.

Damage remote from want of connection with cause of action.

Remote consequences not a ground of action.

Damagé arising from non-repair of fences.

Damage from acts of animals. Cox ». Burbridge; Lee v. Riley;
Ellis v. Loftus.

Act which subverts payment of money.

Damage remote when caused by plaintiff’s own act.

Cases of contributory negligence.

Where plaintiff may recover though himself in fault,

Rule laid down by house of lords.

Cases in which plaintiff is a trespasser.

Contributory negligence applies to infant plaintiffs.

Where both ‘parties are to blame.

Plaintiff's conduct judged by apparent necessity for this act.

Contributory negligence of plaintiff's servant, or of persun in
charge of a public conveyance.

Principle suggested in support of Thorogood v. Bryan.

Where defendant’s negligence is the primary and substantial cause
of injury.

Damage resulting from plaintiff's premature act.

Damage too remote when wrongful act of a third party. Vicars
v, Wilcox. 3

Liability of person who utters a slander for its repetition,

Voluntary repetition of slander.

Riding ». Smith.

Ward v. Weeks, doubted by Ketty, C. B.

Cases where wrong to A is an injury to B.

Fraudulent representations acted on by others.

Fraudulent representation acted on in a way not intended,
Remotenrss or Damace. 67

Sec. 51. Damage must not be too remote.

Having examined the principles by which the assessment of
damages is governed, we have next to inquire, what grounds of
damage will in no case be admissible. These grounds may be
classed under the general head of remoteness. Damage is said to
be remote, when, although arising out of the cause of action, it
does not so immediately and necessarily flow from it, as that the
offending party can be made responsible for it. -

In pursuing this investigation several decisions will be cited
which may, at first sight, appear not strictly in point. I refer to
that class of cases in which special damage is necessary for the
maintenance of the action, and in which the contest has been as to
its sufficiency for that purpose. It is clear, however, that any cir-
cumstances of injury to the plaintiff which are so closely identified
with the conduct of the defendant, as to make it actionable where
it would otherwise be innocent, must a fortiori, be capable of being
taken into consideration in estimating the amount of damage his
conduct has produced. The converse of the proposition may not
always be logically correct. In general, however, it will be found
that where damage is too remote to form the ground of an action,
the reason of the decision would equally exclude it from considera-
tion, though the suit were maintainable on other grounds.

Sec. 52. General principle.

The first, and in fact the only inquiry, in all these cases, is,
whether the damage complained of is the natural and reasonable
result of the defendant’s act ; it will assume this character if it can
be shown to be such a consequence, as, in the ordinary course of
things, would flow from the act, or, in cases of contract, if it ap-
pears to hawe been contemplated by both parties.’ Where neither
of these elements exists, the damage is said to be too remote.’

1 Hadley v. Baxendale, 9 Ex. 341;
23 L. J. Ex. 179. See ante, p. 10.

? The rule stated in the text can best
be illustrated and understood, by a
reference to the cases, as it is some-
times very difficult to draw the line
betweer}that which is proximate, and
that which is remote. In an action
for a breach of a promise of marriage,
there is no definite rule by which to

arrive at the proper measure of dam-
ages, and the matter is left to the
reasonable discretion of the jury, tak-
ing into consideration the pecuniary
and social condition and standing of
the defendant, and the special circum-
stances if any that serve to increase or
diminish the, value of such an alliance
to the plaintiff, but, it has been held
and very properly, not to be proper
68

"

GeneraL Pruvcretes or Damace.

Sec. 53. Damage must be the immediate result of the act complained of.

[*40 ]

*The above rule has been frequently adopted by the
courts,! but it must be admitted, in the language of one of four

judges, that it is a vague rule, and something like having to draw a

for the jury to consider the conse-
quences to the plaintiff, had she
married the defendant and thereby
formed an unhappy alliance, by the
want of that love and affection that a
husband should bear a wife, because
such a result, from such an alliance, is
not inevitable, therefore such consid-
erations are too remote to enter as an
element of damage. Piper v. Kings-
bury, 48 Vt. 480. So, where a person
who was abroad, was, through her
father, employed by the defendant as
a teacher in his school, it was held
that in an action for refusing to per-
form the contract she could not re-
cover the expenses of her journey home
from Europe, where she was traveling
with her mother when the contract
was made, because it did not appear
either that the expenses would not
have been incurred if the contract had
not been made, or that they were with-
in the contemplation of the parties.
Benziger v. Miller, 50 Ala. 206. In
such cases, says Morton, J., in Noble
v, Ames Manuf, Co., 112 Mass. 497,
“all that the plaintiff can claim is,
that he shall be put in as good a con-
dition as he would have been if the
contract had been performed, and
in the case last named recovery
for the expenses of moving from the
Sandwich Islands to Chicopee, Mass.,
and loss of time incident thereto, were
held not recoverable, irrespective of
the fact whether the expenses were in-
curred or the time lost in consequence
of the agreement to employ.

In Richardson v. Northrup, 66 Barb.
(N. Y.) 85, the defendant’s cattle broke
into the plaintiff's corn field, while
the corn was still growing, but after
the plaintiff had expended all the
labor upon it that would be required
until it matured. It was held that al-
though the destruction of the corn at

‘In Hoey v, Felton, 11 C. B. (N.
8.) 142; 31 L. J. C. P. 105; Earns, C.
J.; and in Williams v. Reynolds, 6 B.
& 5. 495; 34 L. J. Q. B. 221; Comp-

that stage of its growth involved a
loss of all the corn that would have
matured if the corn had not been de-
stroyed, yet he could only recover the
value of the crop at the time of the in-
jury, and not the value of a matured
crop, as the latter standard was tuo
remote. In this case there is no ques-
tion but that the destruction of the
young corn, directly involved the loss
of the matured crop, provided it could
be certainly ascertained that the crop
would have matured, except for its
destruction by the defendant’s cattle,
but, while such was the reasonable, it
was by no means the certain and in-
evitable result, and there being no
malice or circumstances of aggrava-
tion, the actual loss at that time was
the measure of recovery. Of course,
in estimating the loss, the state and
stage of the season was a proper ele-
ment to be considered, and the cir-
cumstance whether there was yet time
to get in another crop.

Where a person has been induced,
by false accounts of the transactions
and profits of a joint-stock company,
to buy shares therein, and give for
them asum far beyond their real value,
the measure of damages is the differ-
ence between the actual value of the
shares at the time of the purchase, and
the fictitious value imparted to them
by the false representation. Davidson
v. Tullock, 3 Macq. 783.

Asagainst a manifest wrong-doer, a
jury is justified in making the strong-
est presumptions, so that if an article
of value, such as a diamond necklace,
has been taken away, and part of it is
traced to the possession of the defend-
ant, the jury may reasonably infer that
the whole thing has come into his
hands, and give damages accordingly.
Mortimer », Craddock, 12 L. J. C. P.
166. Where the plaintiff, by his own

ton, J., adopted the passage‘in the
text. And see Hobbs v. L. & 8. W.
Ry. Co, L. R., 10 Q. B, 111.
Remoreness or Damaae.

line between night and day; there is a great duration of twilight
when it is neither night nor day.’

69

»
Every cause leads to an infinite

sequence of effects. But the author of the initial cause cannot be

dealings and acts, renders the nature
of his interest in the property and the
extent of the damages altogether
doubtful, he may vacate his whole
claim, or destroy his right to more
than nominal damages. Pringle ».
Taylor, 2 Taunt. 150.

All damages, which ordinarily and
in the natural course of things might
fairly be expected to result, and have
resulted, from the eommission of the
wrongful act, are recoverable, provided
they are claimed by the plaintiff in his
declaration. PoLLock, C. B., Rigby 2».
Hewitt, 5 Exch. 242; Workman». Gt.
North. Rail. Co., 32 Law J. Q. B. 79;
Gilbertson ». Richardson, 5 C. B. 502.
If by reason of the defendant’s negli-
gence and breach of duty the prop-

erty of the plaintiff has become dete--

riorated and reduced in value by rain
storm, or frost, or any destructive
agencies of ordinary occurrence, the
plaintiff will be entitled to recover all
the damage he has sustained thereby.
Smeed v. Foord, 28 L. J. Q. B. 278.
All persons are responsible for all the
natural consequences resulting from
acts done by them in violation of the
rights of others. The jury are enti-
tled to look into all the circumstances
and at the conduct of both parties,
and see where the blame is, and what
ought to be the compensation accord-
ing to the way the parties have con-
ducted themselves. Davis »v. No.
Western Railway Co. 7 W. R. 105;
Callard v.8. E. Railway Co., 7H. &
N. 79. .

Where the plaintiff has been com-
pelled to’pay money to release him-
self from the injurious consequences
naturally resulting from the wrong-
ful act of the defendant, such money
is recoverable from the defendant as
part of the damages.

In an action for breaking and enter-
ing the plaintiff's dwelling-house, and
assaulting and beating him, Lord EL-
LENBOROUGH allowed the plaintiff to
give in evidence that his wife was so

® Per BLACKBURN, J.,

terrified by the conduct of the defend-
ant that she was immediately taken ill
and died soon afterward, not as‘a sub-
stantive ground of damage, but for the
purpose of showing how outrageous
and violent had been the conduct of
the defendant. Huxley v. Berg, 1
Stark. 98; Bracegirdle v. Orford, 2 M.
& 8.77. ‘But I entertain considera-
ble doubt,” observes Pottock, C. B.,
‘‘whether a person who is guilty of
negligence is responsible for all the
consequences which may under any cir-
cumstances arise, and in respect of mis-
chief which could by no pussibility have
been foreseen, and which no reasonable
person would have anticipated.”
Greenland ». Chaplin, 5 Exch. 248;
Daniels v. Ballantine, 23 Ohio St. 582;
Clement v. R. R. Co., 53 Mo. 366 ; Ham-
ilton v. McPherson, 28 N. Y. 72; Adams
Ex. Co. v, Egbert, 36 Penn. St. 360,

Damages, in order to be recoverable,
must be the proximate, natural, or ne-
cessary consequence of the act. Sur-
vey v. Wells, 5 Cal, 124; Williams 2.
Vanderbilt, 28 N. Y. 217; Priestly vw.
No. Ind. R. R. Co., 26 Ill. 205; Amory
vo. McGregor, 15 Johns. (N. Y.) 24;
Galena, etc., R. R. Co. v. Rae, 18 TL
488; Cooper v. Young, 22 Ga. 269;
Ogden v. Marshall, 8 N. Y. 340; Lau-
rent v. Vaughn, 30 Vt. 90; Kent v.
Hudson R. R. Co., 22 Barb. (N. Y.)
278; Weston v. Gd. Trunk R. R. Co.,
54 Me. 376. The fact that the injury
is a remote result of the act, or in
other words, that the injury would not
have occurred except for the act, is
not enough, if some other cause inter-
vened, which is the proximate cause
of the injury. Thus, where A con-
tracted with B to tow a boat for him
from Bay City to Buffalo, but, before
he had completed the voyage, sus-
pended it, and afterward resumed
it, and a storm came on whereby
the boat was lost, it was held, that
the storm being the proximate cause
of the injury, and the delay the
remote cause, the damages _ result-

L. R. 10 Q. B. 121.
70

GeEnERAL Princretes or DamMacE

made responsible for all the effects in the series. In a case where a
passenger, who had been set down with his wife at a wrong station,
sought to recover from the railway company damages for a cold

ing from the loss of the boat could
not be charged to A., although his de-
Jay was unreasonable and unnecssary.
Daniels v. Ballantine, 23 Ohio St. 532.
Neither can damages’ be recovered
that do not enter into the contempla;
tion of the parties at the time when
the contract was made. Thus, where
A (a dentist) was a passenger on B’s
boat, and lost his baggage, which con-
tained a set of dental instruments,
it was held’ that he could recover for
the actual value of the baggage, but
could not recover for the loss of
profits and earnings which he might
have made if he had not lost ‘his in-
struments, as such damages could not
be said to have reasonably entered into
the contemplation of the parties.
Clemens v. Hannibal, etc., R. R. Co.,
53 Mo. 366; Holloway v. Stephens, 2
8. C. (N. Y.) 658. So in acase where
the defendant entered into a contract
with the plaintiff to keep his dam in
repair, and in default, the plaintiff was
at liberty to repair at the defendant's
expense, it was held that the plaintiff
could only recover the cost of making
the repairs, and could not recover
speculative damages for loss of profits
while his mill was lying idle, nor for
deterioration of machinery. Fort v.
Orndoff, 7 Heisk. (Tenn.) 167.

In an action brought to recover
damages alleged to have been suffered
by the plaintiff in consequence of a
collision between his schooner and a
steamboat, occasioned by the want of
care on the part of such steamboat,
held, that the towage, costs of mate-
rials and repairs, to make the vessel as
good as before, and her expenses while
undergoing repairs, are the elements
of damage to be estimated by the court.
The remote or consequential damages,
growing out of the supposed loss of
profits, should not be considered.
Minor ». Steamer Picayune, 13 La.
Ann. 564.

Where a passenger on board ship
was assaulted and imprisoned for one
night by the captain, and in conse-
quence thereof took the first opportu-

nity of leaving the ship, and paid £100
for his passage home in another ves-
sel, it was held that, in order to re-
cover the £100 as part of the damages
for the assault and imprisonment, it
was necessary for the plaintiff to prove
that there was fair and reasonable
ground for fearing a renewal of the
ill-treatment, and that he left the ves-
sel under the influence of such fear,
and not merely because he was angered
and displeased with the captain, and
could not continue on board with ease
and comfort. Boyce v. Bayliffe, 1
Camp. 58.

When the action of tort is founded
on a breach of contract the damages
recoverable are those which may fairly
and reasonably be considered to arise
naturally, according to the usual
course of things, from the breach of
contract itself, or which may reasona-
bly be supposed to have been in the
contemplation of both parties at the
time they made the contract as the
probable result of the breach of it. If
special circumstances exist which ren-
der the neglect or breach of duty pro-
ductive of more than ordinary injury
and damage to the plaintiff, such special
circumstances must have been commu-
nicated to the defendant in order to
make him responsible for the special
and extraordinary damages resulting
from any neglect or breach of duty on
his part. A man cannot, by merely
changing the form of his action, enti-
tle himself to recover greater damages
than those to which he is by law enti-
tled according to the true facts of the
case and the real nature of “the trans-
action. Chinery 2. Viall, 5H. & N. 295;
Johnson v. Stear, 33 L. J. C. P. 130;
Daniels v. Ballantine, 23 Ohio St. 532;
Adams Ex. Co. v. Egbert, 36 Penn. St.
360; Clemens », R. R. Co., 53 Mo.
366; Hamilton », McPherson, 26 N. Y.
72.

If special damages are claimed they
must be alleged, and proved to be the
proximate result of the injury, but all
damages that are the natural and neces-
sary consequences of an act, may be re-
Remoreness oF Damace.

71

which his wife had caught by walking in the rain at night, Coox-

surn, ©. J., said:

“You must have something immediately flow-

ing out of the breach of contract complained of, something immedi-

covered under a general allegation of
damage; but damages that although a
natural are not a necessary consequence
of an act, are what are called special
damages, and cannot be recovered un-
less specially alleged in the complaint.
Vanderslice v. Newton, 4 N. Y. 130;
Griggs v. Fleckenstein, 14 Minn. 92;
Furlong v. Polleys, 30 Me. 491; Olm-
stead ». Burke, 25 Ill. 86; Hart o. Ev-
ans, 8 Penn. St. 13; Burrell o, N. Y.,
etc., Co., 14 Mich. 34; Hallock v. Bel-
cher, 42 Barb. (N. Y.) 199; Alston v.
Huggins, 3 Brev. (S. C.) 185; Teagar-
den v. Helfield, 11 Ind. 522; Hemmen-
way v. Woods, 1 Pick. (Mass.) 524.
In Hunter v. Stewart, 47 Me. 419, the
tule, which is commonly accepted, is
thus given: ‘‘In an action for injuries
resulting from negligence, only such
damages can be recovered as result
necessarily from the act complained of ;
all other damages must be specially
alleged or no recovery can be had
therefor.”

In an action against a railroad com-
pany for permitting the plaintiff's
mules, in charge of the company, to
escape, a part of which he recovered,
it was held that the services and ex-
penses of the plaintiff in recovering
the mules was a proper element of
damage. Northern Mo. R. R. Co. v.
Akers, 4 Kans. 453. So,where a carrier
lost a canvas bag belonging to the plain-
tiff, containing ninety double eagles
of the coinage of the United States,
it was held that the plaintiff was enti-
tled to recover the value of the coin,
with the premium added thereto, at the
time of the loss, with interest from the
time of demand. Cushing». Wells, 98
Mass. 550. -So, where the defendant
undertook to carry the plaintiff to
San Francisco by way of Nicaragua,
but failed to do so, it was held that
the plaintiff might recover not only
for lost time by reason of his deten-
tion, his expenses there, and his ex-
pense of return to New York, but that
he might also recover the expense of
his sickness after his return to New
York, and for loss of time, so far as

the same was occasioned by the de-
fendant’s negligence or breach of duty.
Williams ». Vanderbilt, 28 N. Y.217.

To summarize, it may be said that
only those damages that can be directly
traced to the injury as the proximate
cause can ever be recovered in an ac-
tion therefor. That is, there must be
an immediate and natural relation be-
tween the act complained of and the
injury, without the intervention of other
independent causes, or the damages will
be too remote. Rucker v, Athens
Mfg. Co., 54 Ga. 84. ‘‘ What is the
proximate cause is a question of fact,
in view of the circumstances attend-
ing it,” say the court, in Milwaukee,
etc, R. R. Co. v. Kellogg, 94 U. 8.
469. ‘‘ Generally, in order to warrant
afinding that negligence, or an act
not amounting to wanton wrong, is
the proximate cause of an injury, the
injury must be the natural and proba-
ble consequence of the negligence or
wrongfulact; one which ought to have
been foreseen in the light of the at-
tending circumstances. The natural
and probable consequences of a wrong-
ful act or omission are not, necessarily,
chargeable to the mtsfeasance or non-fea~
sance, when there 1s a sufficient interme-
diate cause operating between the wrong
and the injury ; but where there is no
intermediate cause the original wrong
must be considered as reaching to the
effect, and proximate to it.” As illus-
trative of the rule, a passenger is
wrongfully ejected from a railway car at
a station, a considerable distance from
that to which he desired to go, and,
instead of waiting for another train or
procuring a proper conveyance, which
he could have obtained, he unnecessa-
rily goes on foot to the place of his
destination, and thereby becomes sick.
Now, his illness thus contracted, is not
the direct and proximate result of the
wrong, but a remote consequence, in-
duced by his own unnecessary act,
which cannot be considered as an ele-
ment of damage; consequently, he
cannot recover the expenses of his ill-
ness, etc., from the railway company,
72

GenerRAL Princietes or DAMAGE.

ately connected with it, and not merely connected with it through a
series of causes intervening between the immediate consequence of
the breach of contract and the damage or injury complained of."
To illustrate that I cannot take a better case than the one now be-
fore us. Suppose that a passenger is put out at a wrong station on
a wet night, and obliged to walk a considerable distance in the rain,
catching a violent cold, which ends in a fever, and the passenger is
laid up for a couple of months, and loses, through his illness, the
offer of an appointment which would have brought him a hand-
some salary. No one, I think, who understood the law, would say
that the loss so occasioned is so connected with the breach of con-
tract as that the carrier breaking the contract would be liable.
Here it cannot be said the catching cold by the plaintiff’s wife is the
immediate and necessary effect of the breach of contract, or was
one which could fairly be said to have been in the contemplation of
C41 | the parties. The wife’s cold *and its consequences cannot

stand upon the same footing as the personal inconvenience
arising from the additional distance which the plaintiffs had to go.
It is an effect of the breach of contract in a certain sense, but re-

Indianapolis, etc, R. R. Co. 2.
Birney, 71 Ill. 391. So, while a pas-

is robbed at the point where he is put
off the train; or if he is assaulted and

senger, who is wrongfully ejected from
a train, may recover the necessary ex-
penses resulting as a direct conse-
quence thereof, such as the expense of
procuring a proper conveyance, loss of
time, for the derangement of his plans
of journey, expenses, etc., of sickness
caused thereby. Williams v, Vander-
a 28 N. Y. 217; Indianapolis, etc.,

R. R. Co. v. Birney, ante; yet, if he

1See Lord Bacon’s maxim: — ‘‘ It
were infinite for the law to judge
the cause of causes, and their impul-
sions one of another: therefore it
contenteth itself with the immediate
cause, and judgeth of acts by that,
without looking to any further de-
gree.” Bac. Max. Reg. 1, cited by
Buackpourn, J., in stating the rule of
our law to be that the immediate
cause, the causa proxima, and not the
remoté cause, is to be looked at.
Sneesby ». L. & Y. Ry. Co., L. R., 9
Q. B. 267; 48 L. a) B. 71. See,
also, yer BLACKBURN, J., Dudgeon v.

injured, or run over by a passing vehi-
cle, orif he is bitten by a dog, etc.,
etc., these disastrous consequences are
not traceable directly to the original
wrong, and therefore are too remote to
be elements of damage in an action
against the railway company, because
independent agencies intervened, and
they are not either the necessary or prob-
able consequences of the original wrong.

Pembroke, L. R., 9 Q. B. 595; 43 L.
J. Q. B. 226. See Indianapolis R. R.
Co. v. Birney, ante,

In an action against a carrier for
failing to carry a passenger more than
half way on his journey, the plaintiff
may recover damages for loss of time,
the derangement of his plans of jour-
ney, the expense of his return, if he
cannot proceed, his sickness caused
thereby, not only at the point of
delay, but also after his return, and
all expenses arising therefrom.  Wil-
liams v, Vanderbilt, 29 Barb. 491;
affirmed, 28 N. Y. 217,
Remoreness oF Damace. 3

moved one stage; it is not the primary, but, the secondary conse-
quence of it.’ The chief justice proceeded to put the case of a
passenger who, from not being carried to his proper destination,
walks 4n a dark night and falls down; or takes a carriage and is
upset ; suffering bodily injury, and added: “In either of those
cases the injury is too remote, and I think that is the case here; it
is not the necessary consequence, it is not even the probable conse-
quence of a person being put down at an improper place and having
to walk home, that he should sustain either personal injury or catch
acold. That cannot be said to be within the contemplation of the
parties so as to entitle the plaintiff to recover, and to make the de-
fendants liable to pay damages for the consequences.” !

Sec. 54. Negligence causing personal injury.

Of course the decision in the above case would have been differ-
ent, if, instead of putting the plaintiff down safely at the wrong
place, the railway company had by their negligence caused any per-
sonal injury to him. Jn such an event not only the immediate pain
and expense caused by the accident, but any “ consequent incapacity
to attend to business, would be a natural consequence of the breach
of contract, and not too remote, or one which the defendants could
say that they did not contemplate.””* But if by the plaintiffs ill-

1 Hobbs v. L. & 8. W. Ry. Co., L. R.,
10 Q. B. 111, 117; 44 L. Q. B. 49. See
Indianapolis, etc., R. R. Co. v. Birney,
71 Ill. 391, to same effect.

? Bradshaw vo. L. & Y. Ry. Co., L.
R., 10 OC. P. 185, 195; 44 L. J. C. P.
148. See per Martin, B., L. R, 1
Ex. 184; 35 L. J. Ex. 100.

In actions for personal injury, re-
sulting from the negligence or wrong-
ful act of the defendant, the plaintiff
is entitled to recover, in addition to
his loss of time, necessary medical
attendance, and the expenses of his
sickness, damages for his mental and
bodily suffering and anxiety of mind
induced by the injury, even though no
special allegation thereof is made in the
complaint, because these are among the
natural, probable and proximate results
of the wrong. Wright v. Compton, 53
Ind. 337; Deppe »v. Chicago, etc., R.
R. Co., 38 Iowa, 592; Kepler ». Hyer,
48 Ind, 499. In an action for the neg-

10

ligent killing of a minor child the
court held that the plaintiff (the father
of the child) was not restricted to the
mere pecuniary loss he had sustained,
but might also recover for his mental
suffering arising from the bereavement,
Owen »v. Brockschmidt, 54 Mo. 285.
The ‘suffering’ endured bya person
injured by the negligence of another,
is a proper element of damage. But
in this case the ‘‘ suffering ” was that
induced by the necessary amputation
of the plaintiff's toes. Pittsburgh,
etc., R. R. Co. 2. Donahue, 70 Penn.
St. 119.

In Verrill v, Minot, 31 Me. 299, the
court say, ‘The statute allows a re-
covery for bodily injury. That is some-
thing else than loss of time and ex-
penses. Pain is a part of bodily injury,
inherent in it. Though difficult to ad-
measure and assess, the injured party
is entitled to recover for it. It must
be confided to the sound discretion of
74.

GeneRAL Prinoretes or Damage.

ness he had lost a valuable appointment, that, I imagine, would
again have been too remote to be a ground of damage.’
A daring attempt to extend the doctrine of consequential dam-

ages failed deservedly in the following case.”

the jury.” ‘Injuries to the person,”
say the court in Penn., etc., Canal Co.
v. Graham, 63 Penn. St. 290, “consist
in the pain suffered bodily and mentally,
and in the expenses and loss of prop-
erty they occasion.” ‘Not only the
suffering experienced before the trial
but such as is reasonably certain to re-
sult from the injury afterward ” may
be shown as an element of damages in
an action for a personal injury.”
Aaron v. 2nd Av. R. R. Co., 2 Daly
(N. Y. C. P.), 127. “ Bodily pain and
suffering is an element of damages for
a personal injury.” Peoria Bridge
Asso. 2. Loomis, 20 Ill. 235; Moor »v.
Teed, 3 Cal. 190; Redfield on Carriers,
§$ 431, 483; Ransom v. N. Y. & Erie
R.R. Co., 15 N. Y. 415; Morse vo. The
Auburn R, R. Co., 10 Barb. (N. Y.)
621; Curtis 7. The Rochester, etc., R.
R. Co., 20 id. 283; Laing v. Colder, 8
Penn. St. 479; Penn. R. R. Co. v.
Kelly, 31 id. 372; Penn. R. R. Co. v.
Allen, 53 id. 276.

“Mental suffering” or ‘mental
anguish” as it is sometimes termed, is
said to be an element of damage in an
action for damages resulting from a
personal injury, as we have seen from
the brief summary of cases given, but
precisely what is intended by the ex-
pression, or what is to be regarded as
the criterion for its estimation, is no-
where given. It must be left to the
sound discretion of the jury. But we
do not apprehend that therule has any
such force as to enable a person to
maintain an action where the only in-
jury is mental suffering as might
be thought, from a reading of the loose
dicta and statements of the court in
some of the tases. So far as I-have
been able-to ascertain the force of the
rule, the mental suffering referred to is
that which grows out of the sense of peril,
or the mental agony, at the time of the
happening of the accident and that which
is incident to and blended with the bodily

1 See Hoey v. Felton, 11 C. B. (N.
8.) 142; 31 L. J. C. P. 105.

The defendant, in

pain incident to the injury and the ap-
prehension and anxiety thereby induced.
In no case has it ever been held
that mental anguish alone, unaccom-
panied by an injury to the per-
son, afforded a ground of action.
In Canning v. Williamstown, 1 Cush.
(Mass.) 451, the court expressly held
that a recovery could not be had for
fright and mental suffering alone, but
that, where there is an actual injury
to the person, however small, that suf-
fering is a part of the injury. In Mas-
ters v. Warren, 27 Conn. 293, and Se-
ger v. Barkhamsted, 22 id. 298, the
mental suffering of the plaintiffs was
held to be an element of damage in
addition to the bodily injuries. ‘“ Pain
of mind,” or mental suffering, cannot be
considered apart from bodily or other in-
jury. Johnson v. Wells, Fargo & Co.,
6 Nev. 224; 3 Am. Rep. 245.

‘Insult and contumely are elements
of damage, even when there is no ac-
tual personal injury inflicted ; but this
is not so much because of the men-
tal suffering that it induces as because
it tends to lower and degrade the per-
son; and, we apprehend that itis per-
mitted to be shown to, and consid-
ered by the jury, more to afford a
proper basis of punitive, than actual or
compensatory damage, although men-
tal anguish may be serious in its con-
sequences, and may properly be re-
garded as an element of actual damage
in connection with other injuries. In
Croaker v. Chicago R. R. Co., 36 Wis.
657; 17 Am. Rep. 504, which was an
action for an assault committed upon
the plaintiff (a female), by the con-
ductor of one of the defendant's
trains, and rudely kissing her against
her will while she was alone in the car
with him, asa passenger, the court
have much to say about mental suffer-
ing, etc., as an element of damage, but
it all finally resolves itself into the
proposition that, such suffering, natu-

* Sharp v. Powell, L. R., 7 C. P. 253;
41 L. J. 0. P. 95.
Remotensss or Daman.

75

breach of a police act, washed a van in a public street, and allowed
the waste water to run down the gutter to a grating about twenty-
five yards off, from which in the ordinary state of things it would

rally incident to the injury, may be
shown, and is a proper basis for vin-
dictive damages. But see Kepler 2.
Hyer, 48 Ind. 499, where, in an action
‘by husband and wife, for an alleged
injury to the person of the wife, the
wife testified that, at her residenee
defendant made a proposal to her to
go to a designated city, on pretense of
business, and spend a day or night
there ; that she resented this, and
started to leave the room; that he
grasped her by the arm and requested
her to remain, and tried to force her
to sit down, that she tore herself away
from him and ordered him out of the
house; that he took hold of her again
and she again tore herself away from
him, when, after some conversation, he
left the house. The court instructed
the jury that, while they were not to
allow punitive damages, ‘‘the damages
must be compensatory to the plaintiff
Jor the injury she has received, not con-
Jined to bodily suffering or to actual
pecuniary loss, but you should take into
consideration every circumstance of the
act which injuriously affected the plain-
tiff, not only in property, but in her
person, in her peace of mind, reputation
and, in short, her individual happiness.”
The court held the charge erroneous,
because it authorized the jury to give
damages to the plaintiffs for injury to
the reputation of the female plaintiff.
Injury to reputation cannot enter into

the estimate of damages in such a

case.

Mental anguish of itself has never
been treated as an independent ground
of damages so as to enable a person to
maintain an action for that injury
alone, neither has insult nor contumely.
Mental anguish of the most excruciat-
ing character may, and generally
does, result from charging a person
with, degrading acts, not amounting
to a crime, as by charging a lady with
being a prostitute, or a gentleman
with being a scoundrel, a blackleg, a
cheat, etc., yet, unless productive of
special damages apart from the mental
suffering occasioned thereby, no action

will lie. Neither do we apprehend
that an action could be maintained
against a railway company because
some passenger became frightened by
some movement or motion of the train,
although the fright induces serious
consequences to the passenger. Such
consequences are highly proper as ele-
ments of damage in connection with
other bodily injuries, but standing
alone it does not afford a sufficient
ground of.action. |

Where the statute gives a remedy
where none existed at common law,
damages can only be given for the
causes named in the law. Thus,
where the statute provides that a wife
may recover of a person who sells in-
toxicating liquors to her husband,
damages for an injury to her person,
property or means of support, it is
held that mental pain, suffered by her
in consequence of the intoxication of
her husband, is not an element of
damages to be considered; Meidel o,
Anthis, 71 Ill. 241; and that she can-
not recover exemplary damages, un-
less some actual damage is shown.
See, also, to the same effect, Oldfield
ov. N.Y. & H.R. RCo, 14. N. Y. 310;
Tilley » H. R. R. R. Co., 29 id. 252;
Lehman v. Brooklyn, 29 Barb. (N. Y.)
234; in all of which it was held that
in an action under the statute 1847
and 1849, brought by a husband for
the negligent killing of his wife, loss
of society and mental anguish could
not be considered. ‘This doctrine,
however, is opposed to that of Can-
ning v. Williamstown, 1 Cush. (Mass.)
451. In that case an action was
brought to recover for an injury sus-
tained by reason of defects in a high-
way under the Revised Statute, chap.
25, sec. 22, which gives a right of
action for an injury ‘‘to the person
or property.” The court held that
while for an injury which produces
mental suffering alone, an action could
not be maintained, yet, where an
actual injury, however slight, is estab-
lished, then mental pain, suffering or
anguish becomes a part of the injury
76

6 have drained into the sewer.
] frost the grating was obstructed by ice, and the water in con-

[*4

Gewnrerat Prrivories or Damaae.

*In consequence of a hard

sequence flowed over the pavement and froze. There was no evidence
that the defendant knew of the grating being obstructed. The

for which the town is liable, and we
are inclined to regard this doctrine as
accurate. See, also, Verrill ». Minot,
ante; and, even under the ruling in
the Illinois case, if an actual injury
had been established, this element
would have had its influence upon the
amount of exemplary damages to be
awarded.

Loss of time, loss of business, ina-
bility to attend to business or diminu-
tion of business capacity, etc., are
proper elements of damage, and in-
deed furnish an independent and ade-
quate ground of recovery. Wade 2.
Leroy, 20 How. (U. 8.) 34; Peoria
Bridge Assn. v. Loomis, 20 Ill. 235;
Nones ». Northouse, 46 Vt. 587. In
Ballou v. Farnum, 11 Allen (Mass.),
78, the court held that, in an action
for a personal injury, a plaintiff, can
recover compensation for the loss of
physical and mental capacity so far as
occasioned solely by the injury, and that
evidence of the plaintiff's occupation
and capacity previous to the injury, and
his subsequent capacity, is admissible
for the purpose of enabling the
court or jury to ascertain the
extent of the injury. In Wade ».
Leroy, ante, it was held that
the plaintiff might show that previous
thereto he had been engaged in a
particular business, for the prosecu-
tion of which the injury wholly inca-
pacitated him, even though there is no
such allegation in the complaint.
See, also, N. J. Ex. Co. v, Nichols, 33
N. J. Law, 484; Howes v. Ashfield,
99 Mass. 540. The loss of business
sustained by the party injured is a
proper ground of recovery. So held
in a case where an expressman was in-
jured by the negligence of a railroad
company. Albert v. Bleecker St., etc.,
R. R. Co., 2 Daly (N.Y. C. P.), 3889;
Western, etc., R. R. Co. v, Drysdale,
51 Ga. 644; Chicago v. Langlass, 66
Ill. 361. But the defendant may
show, if he can, that the business was
not profitable, or that it is unlawful,
or any circumstances connected with it

that tend to establish its value. Ina
case where a physician brought an
action for personal injury and sought
to recover for his loss of business, the
court permitted the defendant to show
that his practice was unlawful, and
that for the purpose of establishing
the fact, his professional reputation
in this respect might be shown.
Jaques v. Bridgeport Horse R. R. Co.,
41 Conn. 61. The disabling effects
of an injury, whether past or prospect-
ive, should be considered, as there can
be but one recovery; Walker vo. Erie
R. W. Co., 68 Barb (N. Y.) 260;
Barbour Co. v. Horn, 48 Ala. 567;
Filer vo. N. Y. ©. R.R. Co., 49 N.
Y. 42; Curtis v. Rochester, etc., R.
R. Co., 20 Barb. (N. Y.) 282; there-
fore the reasonable expectations of the
plaintiff if the injury had not been in-
flicted are proper to be considered.
Baltimore, etc., R. R. Co. ». Shipley,
381 Md. 368. The rule is well ex-
pressed in McLaughlin ». Corry, 77
Penn. St. 109, in which the court say
‘“‘the measure of damages is the direct
expenses, the inconvenience, pain and
pecuniary loss sustained, and likely to
be sustained during life, and the plain-
tuf’’s actual loss of earning power from
the accident.” Present loss and future
incapacity are to be considered. Klein
v. Jewett, 26. N. J. Eq. 474.

In a case where the husband brings

-an action for an injury sustained by

his wife, he is entitled to recover for
all the necessary expenses of her sick-
ness, sums paid for the labor of others
in substitution for the ordinary servi-
ces of the wife, and for his own servi-
ces in taking care of her. Lindsey v.
Danville, 46 Vt. 144; Hopkins v. Atlan-
tic, etc., R. R. Co., 36 N.H.9. A mas-
ter may maintain an action for an in-
jury to his servant for the loss of service
consequent thereon, and the father may
maintain an action for an injury to his
minor children, the gist of the action
also being for loss of service during
minority. The question of damages,
etc., involved in those two classes of
Remotenrss or Damage.

17

plaintiff's horse slipped on the ice and broke its leg. It was sought

to recover from the defendant the value of the horse.

But it was

held that the damage was too remote, not being one which he could
fairly be expected to anticipate as likely to ensue from his act.!

actions is discussed in Wood's Law of
Master aad Servant, 436-449, and the
result arrived at is that, in an action
by the master, the damages are re-
stricted to the actual loss sustained by
him for the loss of his services. He
says: ‘‘ Unless the master sustains an
actual loss thereby; as if the servant
is able to perform the service, he alone,
and not the master, can sustain an ac-
tion for the injury. The master’s right
of action does not accrue from the origi-
nal act producing the injury, but from
the loss of service consequent upon the
6riginal act; hence if there is no loss of
service to him, there is no right of ac-
tion, but in favor of the servant him-
self. "Robert Mary's Case,9 Coke, 113a,
Voss v. Howard, 1 Cr. (U. 8. C. C.)
251; 15 Viner’s Abr. 331. In the case
of an action brought by a parent, a
master of an apprentice, or any person
bound by law or by contract to main-
tain the servant, not only the loss of
service past and prospective are to be
considered, but also a recovery may be
had for all the reasonable expenses of
his sickness. Mr. Wood, in Wood’s
Law of Master and Servant, p. 443,
says:
“Tn Hall », Hollander, 4 Br. C. C.
660, the defendant drove his carriage
against the plaintiff's son, a child only
two years of age, and seriously injured
him. The plaintiff brought his action
for the injury per quod servitium amisit,
and the defendant having proved that
the child, by reason of its tender age,
was incapable of rendering any ser-
vice, the plaintiff was nonsuited, and
the nonsuit was sustained. 2 Rolle’s
Abr. 682, But, while an action per
quod servitium amisit cannot be main-
tained by a parent or a master, when
the servant is physically incapable of
performing any service, by reason of
physical disability or tender age, yet,
if the parent or master, by law or by

1 See, too, Crouch v. G. N. Ry. Co.,
11 Ex, 742; 25 L. J. Ex. 137; Burton
vy. Pinkerton, L. R., 2 Ex. 340; 36

contract, is bound to maintain the ser-
vant in sickness or in health, and to
provide him with medical attendance
and proper care, there seems to be no
question but that, in this country at
least, an action will lie for the actual
loss to the parent or master by way of
necessary trouble and expense arising
to him from such injury. This ques-
tion was raised and directly passed
upon by the supreme court of Massa-
chusetts, in the case of Dennis ».
Clark, 2 Cush. (Mass.) 347. In that
case the plaintiff's minor son was in-
jured by the defendant’s mare in con-
sequence of which the plaintiff was
put to great trouble and expense in
taking care of the child, and in sup-
plying him with medical attention.
The precise age of the child does not
appear, nor does it seem to have been
material, so long as the parents’ obli-
gation to furnish him with care and
medical attendance was established,
the action being not for loss of service
but for the necessary trouble and ex-
pense to which the plaintiff was sub-
jected, by reason of the injury, such
as the expenses incident thereto and
for his own trouble, and the medical
attention and nursing of the child.
At nisi prius it was urged that no re-
covery could be had because no loss of
service was alleged or proved, and the
lower court so holding, the plaintiff
was nonsuited. But, upon appeal, the
judgment was reversed, and the court
held, that, in cases where the parent or
master is under a legal obligation to
supply the servant or child with care
or medical attendance, and sustains a
direct and immediate loss from the
injury to the servant, in this respect,
that a recovery may be had therefor,
even though no actual loss of service
results therefrom.

To the same effect, also, is the case
of Hunt » Wotton, T.. Raym. 259, to

L. J. Ex. 187; Carter v. G. W. Ins.
Co., L. R., 8 C. P. 552; 42 L. J. CO. P.
266.
78

GeveraL Princretes oF DAMAGE.

Sec. 55. Wilson v. Newport Dock Company.

In the case of Wilson v. Newport Dock Company,! the court of
exchequer was unable, upon the materials before it, to decide

whether the claim lay on one side

which the court referred in the pre-
ceding case. In that case the defend-
ant pushed a person upon the plain-
tiff’s infant son, whereby his thigh-
bone was broken, and the plaintiff
expended care and money in his cure,
and in an action to recover for the
same, after verdict therefor, the de-
fendant moved in arrest of judgment,
because no loss of service was alleged
or proved, but the motion was over-
tuled and the verdict permitted to
stand. In Hall v. Hollander, ante, the
court, in rendering judgment for the
defendant, intimated that, had the
action been for the necessary expenses
incurred in the cure of the son, instead
of being predicated upon the loss of
his services, a recovery might have
been had. “TI am not certainly pre-
pared to say,” said Bayney, J., “that
a declaration might not be framed in
which the father being amoved to be
under an obligation to maintain the
child and having no means of provid-
ing medical assistance, he necessarily
incurred expense in and about his cure,
so as to‘enable him to recover.” To
the same effect, see opinion of the
court in Durden v. Barnett, 7 Ala. 169.
But, in all such cases, in order to up-
hold a right of action, the legal obli-
gation to furnish the care and atten-
tion, and to incur the expense, must be
specially averred and proved, or, as in
the case of a parent, must arise by
necessary implication from the facts
averred, or the declaration will be held
bad upon demurrer.

The right of a father, or of one stand-
ing in loco parentis, as the master of an
apprentice, or one bound by contract
with the servant, to provide care and
medical attention for him, to maintain
actions for personal injuries, by reason
of which necessary care and expense
has been incurred, may be regarded as
well settled in this country; but, in all
instances where such a remedy is
sought for an injury to one who, by

L: R., 1 Ex. 177;

or the other of the dividing line

reason of infirmity or tender age, is in-
capable of rendering any service, the
acticn should be for the trouble and
expense, and not for loss of service,
and the obligation to incur the expense
should be distinctly set forth in the
declaration, or appear by necessary im-
plication from the facts stated.

In such cases, loss of service is not
material, even though the child or ser-
vant is hired to the defendant for a
term, yet, if he intentionally or negli-
gently injures the child or servant, an
action of trespass on the case will lie
against him in favor of the parent or
master, provided that the injury did
not result from the wrongful act, or
from the contributory negligence of
the plaintiff, or the servant or child.

As, for putting him on to a vicious
horse, knowing it to be vicious; Wilt
v. Vickers, 8 Watts (Penn.), 227; or,
other intentional or negligent acts of
the defendant. Dennis v. Clark, ante;
Durden v. Barnett, ante; Hartfield v.
Roper, 21 Wend. (N. Y.) 6156 Calla-
han v. Bean, 9 Allen (Mass.), 401;
Wright ». Malden, etc., Re R. Co., 4
id, 283; Kreig v. Wells, 1 E. D.S. (N.
Y.) 74. ‘

And in all such cases, the obligation
to furnish such care and attention, or
incur the expense for which a recovery
is claimed, must arise from a natural
and legal relation, or from a contract
entered into with the servant himself.
There must exist either a natural or
legal relation between the plaintiff and
the party injured, and a relation arising
under a contract with a third person,
to which the servant is not himself a
party, is not an adequate ground of
action. Thus, in Anthony v. Slaid, 11
Metc. (Mass.) 290, the plaintiff en-
tered into a contract with the town of
Adams to support all the poor charge-
able upon the town for a certain period,
and undertook to support them, in
sickness and health at his own risk.
The defendant's wife committed an as-

35 L. J. Ex. 97.
Remorensrss oF Damace.

between proximate and remote damages.
contracted to receive a ship into dock at a specified time.

79

There the defendants
The ship

was brought to the dock in ballast at the specified time, but owing
to the breaking of one of the chains of the dock-gate she could not

sault upon one of the paupers, and
beat him in such a manner that he was
seriously injured, and the plaintiff was
put to increased expense in his sup-
port. Inan action for the damages
resulting to him from the injury,
Suaw, C. J., said: “The court of com-
mon pleas decided that this action, if
“the facts alleged in the declaration
were proved, could not be maintained.
* * We are of opinion that this de-
cision was right. Itis not by means
of any natural, or legal relation be-
tween the plaintiff and the party in-
jured, that the plaintiff sustains any
loss by the act of the defendant’s wife,
but by means of the special contract by
which he had undertaken to support the
town paupers. The damage is too re-
mote and indirect.” It is true that in
this case the relation of master and
servant did not exist, but the princi-
ple upon which the right of action
rests is the same in the one case as in
the other, and there can be no recovery
in either, unless there exists, between
the plaintiff and the party injured,
such a legal relation as would enable
the party injured to pledge the credit
of the plaintiff for the necessary care
and expense resulting from the injury,
or as would enable him to maintain an
action against him for breach of con-
tract for neglecting or refusing to sup-
ply it. See opinion of Saaw, C. J., in
Anthony v. Slaid, ante.

When an action is brought by a
master for an injury to his servant per
quod servitium amisit, a recovery may
be Lad, even though no contract to
serve exists between him and the ser-
vant. It isenough for him to show that
he was, at the time of the injury,
enjoying the benefit of the servant's
labor, and was deprived of such
benefit by the wrongful act of the
defendant. Evans v. Walton, 36
L. J. C. P. 307; Martinez v. Ger-
ber, 3 Man. & Gr. 88. So, too,
a recovery may be had, even though
the services were of but little value to
him. The gist of the action is the

‘pecuniary interest

loss of service; hence, so far as the
remedy itself is concerned, if the ser-
vices are of any, even the slightest
value to him, a right of recovery ex-
ists, but, as the measure of recovery
is the actual loss, present and pro-
spective, Drew v. Sixth Av. R. R. Co.,
26 N. Y. 49, the actual value of the
service goes to affect the measure of
recovery, and not the right of recov-
ery itself. In actions of this charac-
ter, a distinction necessarily exists, so
far as the measure of recovery is con-
cerned, between actions brought by a
parent, or one standing in loco paren-
tis, for an injury inflicted upon an in-
fant child, and an action by a master
for an injury to his servant. In both
cages the gist of the action is loss of
service, and by legal fiction are pred-
icated upon the relation of master and
servant; Dennis v. Clark, ante; Ed-
monson v. Machel, 2 T, R. 4; but in
the one case the relation is of a dual
nature, both natural and legal, while
in the other it is the mere creature of
a contract. In the one case the right
to recover arises from a duty and ob-
ligation imposed by law, natural and
human, to support, educate and main-
tain the child, who is a servant only
by a legal fiction, and in whose wel-
fare, the parent, in obedience to the
ordinary instincts of humanity, has
the deepest interest in every sense,
while in the other, there is merely a
to the extent
of the actual benefit likely to
arise from his services. To the parent,
an injury to his child may bring not
only great pecuniary loss by depriv-
ing him of his services, but also by
imposing upon him the burden of his
support and care during the period
that such injury deprives him of the
capacity to labor, while in the other:
the actual loss is that which results
from putting the servant in a condi-
tion that disables him from perform-
ing the master’s service. In one case
where a father brought an action for
the loss of the service of his minor
80

GernERAL Princretes or Damage.

be admitted. The day was stormy, and, after a consultation be-
tween the pilot and captain, the latter anchored the vessel opposite
the dock. At the turn of the tide she grounded on a sandbank,
aud broke her back. The plaintiff sued to recover her value, and at

child, who had been killed by the
negligence of the defendant, it was
held that he was entitled to recover
not only for the loss of service, present
and prospective, but also for the
expense of the sickness of the
mother, caused by her grief in con-
sequence of such killing. Ford 2».
Monroe, 20 Wend. (N. Y.) 210.
But in actions per quod, even by
a parent, predicated upon personal in-
juries to the child, damages are not
permissible for injuries to the feelings
of the parents; Cowden ». Wright, 24
Wend. (N. Y.) 429; but the recovery
may be extended not only to embrace
past and present, but also prospective
loss of service. Drew. Sixth Av. R.
R. Co., 26 N. ¥. 49. The rule appli-
cable in such cases seems to be that a
parent, in an action for an injury to
his mivor child, is not restricted to
the actual injury to him at the time
when the suit was brought, but may
recover for all the loss he had actually
sustained by reason of the child’s ill-
ness, including his own services in
taking care of him, his neglect of
business in consequence of the child’s
illness, necessary charges for medical
services, medicines, nursing and all
the necessary expenses and loss incur-
red as the natural and proximate re-
sult of the injury, and also his proba-
ble prospective loss by being deprived
of the child’s services during the re-
mainded of his minority, as well as
for the probable prospective loss from
being compelled to support the child
as a consequence of the injury. Black
v. Carrolton R. R. Co., 10 La. Ann,
"33. But vindictive, or punitory dam-
ages, are not recoverable; Id.; except
in cases where ‘the action is brought
by the child himself, or for his benefit.
Donnell », Sandford, 11 La. Ann.
645.

As has previously been stated, when
the action is brought for loss of ser-
vice, the master must show that the
servant was able to perform some ser-
vice at the time of the injury; Tor-

rence ». Gibbins, 5 Ad. & EL. (N. 8.)
800; Dixon v. Bell, 1 Starkie, 287,
although any, even the slightest ser-
vice, will suffice. Torrence v. Gib-
bins, ante; Jones v. Brown, Peake,
233. Thus it has been held that in
case of a parent, mere residence with
him is sufficient, ‘*as,” says Lirris-
DALE, J., ‘service may be considered
to be a necessary result of the resi-
dence,’ and in that case, it was held
that proof of service, beyond resi-
dence, was unnecessary. But where
the relation grows out of a contract,
proof of ability to serve, and actual
loss of service, is not only material but
absolutely indispensable. Maunder ».
Venn, Moo. & M. 3238; Torrence ».
Gibbins, ante, particularly opinion of
CoLERIDGE, J.

The master or parent has his remedy
for the loss of service, and a recovery
by him does not, in any manner, affect
the servant’s right of action for the
same injury, nor does a recovery by
the master in any wise affect the meas-
ure of the servant’s recovery. Rogers
v. Smith, 17 Ind. 323; Robert Mary’s
Case, 9 Coke, 113 a; Bacon’s Abr., tit.
Master and Servant, 594; Savil o.
Kirby, 10 Mod. 386; Combesv. The
Hundred, Holt, 27.

Thus, where a person assaults and
beats a servant, so that he is unableto
perform his master’s service, the mas-
ter may maintain an action in respect
to the injury so by him sustained,
and may recover the actual loss to
him, and the servant may also main-
tain an action in respect to the injury
to his person, and may recover there-
for his actual loss of time, expendi-
tures in respect to medical treat-
ment and for care and attendance
during his illness, and for his bodily
pain and suffering; and the action by
the one does not, in any respect, affect
the remedy of the other. Robert
Mary’s Case, ante; Rogers o. Smith,
ante; Bacon’s Abr., ante. And the
same rule applies in all cases of
injury to the servant, whether from
Remoteness or Damaae. 81

the trial two questions were left to the jury. First, was it possible
to have taken the vessel to a place of safety? Second, if so, was it
the fault of the captain or the pilot that she was not so taken? The
jury were unable to agree on the first question, but found on the
second that there was no negligence on the part of either captain or
pilot. Martin, B., was of opinion upon these findings that the de-
fendants were liable. He thought the verdict of the jury amounted
to this, that the defendants’ breach of contract placed the captain in
a position in which he had to adopt one of several perilous alterna-
tives, and that he acted in a proper and reasonable manner under
the circumstances. The defendants were, therefore, responsible for
the consequences, which were the natural result of the course he
adopted. He considered that the case was decided by the authority
[*43 J of Jones v. Boyce,’ where an accident happened to * a stage

coach, upon which the plaintiff jumped down and broke
his leg. Lord ELtenzoroveu put it to the jury to consider, whether
the plaintiff’s acts were such as a reasonable and prudent mind
would have adopted, and added: “Jf J place a man in such a
situation that he must adopt a perilous alternative, [ am responsi-
ble for the consequences.” The rest of the cburt, however, thought
that the want of any finding upon the first question rendered it im-
possible to decide the case. They pointed out, that if there was

the intentional or negligent act of
another.

301; McCarthy » Guild, 12 Metc.
(Mass.) 291; from negligent driving;

The master’s remedy embraces
every wrongful injury inflicted upon
the servant that deprives him of
capacity to serve, by whatever means
inflicted. Thus, an action has been
upheld for falsely imprisoning the
servant; in Woodward v. Washburn, 3
Den. (N. Y.) 369, the plaintiff’s clerk
went toa bank, on business, shortly be-
fore the usual time of closing the bank,
and while he was counting the money
the clock struck the hour for closing,
and an officer of the bank knowingly
locked him in, and refused to open the
door. Held, that the plaintiff might
maintain an action against such offi-
cer, for the loss of his clerk’s services;
for injuries from a bite of a dog;
Hodsoll o. Stallebrass, 11 Ad. & El.

Martinez v. Gerber, 3 M. & G. 88;
from negligence in the operation of a
railroad train; Ames». Union R. R.
Co., 117 Mass. 541; from negligently
exposing him to danger; Dixon »,
Bell, 1 Stark. 228; from an assault
and battery; Ditcham ». Bond, 3
Camp. 524; Duel’. Harding, Strange,
595; Rosiers v. Sawkins, Holt, 460;
Savills. Kirby, 10 Mod. 386; from the
kick of a horse; Dennis ». Clark, 2
Cush. (Mass.) 847; or any negligent
or willful act that inflicts an injury
upon the servant, depriving the mas-
ter of his services: Kennedy »v. Shea,
110 Mass. 147; Thompson ». Ross, 5
H. & N. 16; Martin » Payne, 9
Johns. (N. Y.) 387; Rice v, Nicker-
son, 9 Allen (Mass.), 478,

11 Stark. 493.

11
82 GENERAL PrinoreLes oF Damaae. '

any place of safety to which the ship could and ought to have been
taken, then the defendants were not responsible. Nor would they
have been responsible if the weather was so stormy that it was an
unsafe thing to take the ship to the dock at all. A new trial was,
therefore, directed to settle these points.

Sec. 56. When profits may be allowed for and when not,

One very common instance in which damages are held to be too
remote arises where the plaintiff claims compensation for the profits
which he would have made, if the defendant had carried out his
contract. It is by no means true, however, that such profits can
never form a ground of damage.1 There are many cases in which
the profit to be made by the bargain is the only thing purchased,
and in such cases the amount of that profit is strictly the measure
of damages. When A agrees to execute work for B, or to sell him
goods for resale, or to hire him a ship at a future day, the benefit to
-A is the profit Howing from the transaction, and to this he is en-
titled. But when the thing purchased is a specific article, the only
benefit that can be allowed for in measuring the damages will be the
value of that article, or the difference between the contract price

[44]

and that at’ which it could have been purchased * elsewhere.
The mere fact that some ulterior profit might have been

made out of it cannot be considered, because such profit formed

no part of the contract.’

1Tn cases of infringement of patent
or unlawful use of trade-mark, loss of
profits forms the substantial ground
for the claim of compensation. It has
been decided that special damage, by
loss of custom or otherwise, must be
proved, where a trade-mark has been
used; and it cannot be assumed that
the goods sold by the defendant
would have been sold by the plaintiff,
but for the defendant’s unlawful use
of his trade-mark. Leather Cloth Co.
v. Hirschfield, L. R., 1 Eq. 299. On
the other hand, every sale of a pat-
ented article must be a damage to the
patentee. See per Pacs-Woon, V. C.,
Davenport v, Rylands, L. R., 1 Eq.
802; where the difference in form be-
tween the inquiry as to damages in the
case of a patent and of a trade-mark
is pointed out. Where a patentee has

This distinction has been very clearly

been in the habit of granting licenses
at a certain royalty, the measure of
damages will be the amount of royal-
ty which ought to have been paid.
Penn ». Jack, L. R., 5 Eq. 18; 36 L.
J. Ch. 455. See, also, Betts o. De
Vitre, 34 L. J. Ch. 289.

In an action a counter-claim was
set up for damages for a failure to
complete a road in the time contracted
for, and among them was an item
“for loss of tolls” the defendant
might have received. The court di-
rected this item to be stricken out, as
being too vague, uncertain and re-
mote. Western Gravel Road ». Cox,
39 Ind. 260.

The fact that, owing to the failure
of one party to a contract to complete
the building of a highway within the
time stipulated, the other was obliged
Remorensss or DamaGe. 83

pointed out in a case in the supreme court of New York. The
plaintiffs had contracted with the defendants to furnish marble from
a specified quarry at a fixed sum, for the erection of a city hall.
The plaintiffs entered into a contract with the proprietors of the
quarry for the required amount, at a smaller sum. After deliver-
ing a part of the marble the defendants refused to receive any
more. The plaintiffs sued for breach of contract, and claimed as
damages the profit they would have made by furnishing the marble

at a larger sum than they were to pay for it. Kent, J., ruled ac-.

cordingly, “ that the jury should allow the plaintiffs as much as the

performance of the contract would have benefited them.” And
this ruling was affirmed in the court above. Nexson, C. J., said:

to make a deduction in the rental of
a house on the line of the road, was
held to be too conjectural and remote
an item for damages. Otherwise as
to an item arising from the necessity
of constructing a winter road for
plaintiffs use. Smith »o. Smith, 45
Vt. 433.

In an action to recover damages for
failure on the part of the defendant to
comply with the conditions of a lease
from him to plaintiff, of a grist mill,
in respect to keeping in repair the
dam, by means of which the mill was
without the necessary supply of water
to do all of its business, the measure
of damages is the difference between
the rental value of the mill in the con-
dition it was in, and its value if it had
been kept in the condition stipulated
by defendant. The additional profits
plaintiff would have made in the busi-
ness of the mill, if it had been put
and kept in such condition, are too
remote to constitute a basis of ‘re-
covery. Winne v. Kelly, 34 Iowa,
339; Rogers v. Bemus, 69 Penn. St.
432.

In an action for breach of a con-
tract to continue plaintiff as defend-
ant’s agent for the sale of car springs,
and to allow him commissions on
sales, it was held that estimates of
probable sales furnished no criterion
for fixing damages, and. that evidence
of the amount of profits which might
have been made during the term of
the contract, based upon the calcula-
tion of the probable amount of sales

during such term, was inadmissible-
Washburn v. Hubbard, 6 Lans. (N:
Y.) 11; French v. Ramage, 2 Neb, 254.
So, where the plaintiff brought an
action for a conversion of a carpet-bag,
containing plaintiff's clothes, plaintiff,
as one cause of action, alleged that in
consequence of such conversion, he, a
laboring man, was compelled to work
in unsuitable clothes, which were
damaged thereby. The court held
that such an allegation could only be
made and proved as special damages
under the count for conversion, and
such damages were ‘too remote.
Saunders v. Brosius, 52 Mo. 50.

Money paid for board by a person
injured; Graeber 0. Derwin, 43 Cal.
495; and loss of time in bringing an
action are too remote to be treated as
elements of damage. Blackwell 2.
Acton. Loss of custom or profits be-
cause of the defective performance of
a contract, unless clearly within the
contemplation of the parties as a prob-
able result of the breach, and suscep-
tible of ready computation, cannot be
recovered. Thus, where the defend-
ant entered into a contract to dress
mill stones for the plaintiff, it was
held that no recovery could be had
for loss of custom and profits, without
a stipulation to that effect. Fleming
». Beck, 48-Penn.:St. 309; Harwood
». Tappan, 2 Spears (S. C.), 586; Hunt
». D’Orval, Dudley (8S. C.), 180;
Horner v. Wood, 16 Barb. (N. Y.)
386; Minor v. The Picayune, 13 La.
Ann. 564.
84 GeneraL Princietes or Damaas.

“Tt is not to be denied that there are profits or gains derivable from
a contract which are uniformly rejected as too contingent and specu-
lative in their nature, and too dependent upon the fluctuation of
markets and the chance of business to enter into a safe or reasonable
estimate of damage. Thus, any supposed successful operation the
party might have made, if he had not been prevented from realiz-
ing the proceeds of the contract at the time stipulated, is a consid-
eration not to be taken into the estimate. Besides the uncertain
and contingent issue of such an operation, in itself considered, it
has no legal or necessary connection with the stipulations between
the parties, and cannot, therefore, be presumed to have entered into
their consideration at the time of contracting....When the books
and cases speak of the profits anticipated from a good bargain, as
matters too remote and uncertain to be taken into the account in as-
certaining the true measure of damages, they usually have reference
to dependent and collateral engagements entered into on the faith
and in expectation of the performance of the principal contract.
But profits or advantages which are the direct and immediate fruits
of the contract, entered into between the parties, stand upon a
different footing. These are part and parcel of the contract itself—
[45 J entering into and constituting a portion of its *very ele-

ments, something stipulated for, the right to the enjoyment
of which is just as clear and plain as to the fulfillment of any other
stipulation. They are presumed to have been taken into considera-
tion and deliberated upon before the contract was made, and formed,
perhaps, the only inducement to the arrangement.” !

Sec. 57. Difference between iecmiaey and seconaary profits. Losing chance of
a prize.

The distinction pointed out in the above judgment between pri-
mary and secondary profits furnishes the key to the English cases
in which profits have been admitted and rejected as an element in
the damages allowed. Many of these cases have already been cited
and commented on. For instance, where the act complained of
was the non-delivery of a ship, themeasure of damages was the:
profit that might have been made out of her use.? So in the case

' Masterton ». Mayor of Brooklyn, ‘Thames Ironworks Co., L. R., 3 Q B.
7 Hill, (N Y.) 62. 181; ante, p. 37; Hx parte Cambrian

* Fletcher v, Tayleur, 17 C. B. %1; Steam Packet Co., L. R., 6 Eq. 396; L.
251. J. 0. P. 65; ante, p. 22; Coryv. R., 4 Ch. 117; ante, p. 51.
Remorensss or Damages. 85

of non-delivery of goods, the measure of damages is the ordinary
selling price of the goods, that is, the ordinary profit that would
have been made if they had been received in due course; but not
the special profit that would have arisen from some exceptional con-
tract for resale. So where an action was brought against the
defendants for not fulfilling a contract to fit up certain machinery
within a reasonable time. The declaration laid as special damage
the loss of time of the plaintiffs apprentices, who were in conse-
quence kept unemployed ; and also the loss they had incurred by
being unable to perform a contract entered into with another firm
for the supply of bobbin. It appeared that this contract being for
the sale of goods above the value of 102. was not valid, for want of
writing, under the Statute of Frauds. The first item of damage
was allowed without question. As to the second, ALpERgoy, B.,
said, “The defendants undertook to perform a contract within a
reasonable time, and failed. to do so; the plaintiffs say, ‘We
should have made certain profits had the contract been performed.’
The jury are not bound to adopt any specific contract that may

*have been made; but if reasonable evidence is given that
the amount of profit would have been as claimed, the dam-
ages may be assessed accordingly.

Wilson v. Lancashire and York-
shire Ry. Co., 9 C. B. (N. S.) 682; 30
L. J.C. P. 282; ante, p. 23; Borries».
Hutchinson, 18 C. B. (N. S.) 445; 34
L. J. C. P. 169; Horne v. Midland Ry.
Co, L. R., 7 C. P. 583; L. BR, 8 C. P.
181; ante, p. 39; Larios v. Gurety, L.
R., 5 P. C. 346, 358.

2 Waters v. Towers, 8 Ex. 401. See
22 L. J. Ex. 187. The idleness of
workmen, delay in business, and ex-
penses made in attempting to get the
articles elsewhere that the defendant
had contracted to make, were held
not to be recoverable as damages for
the breach. Walker o. Ellis, 1 Sneed
(Tenn.), 515. Where the defendant
contracted to erect a warehouse for
the plaintiff for the storing of broom
corn, and to have it completed by a
certain time, which he did not do, it
was held that the plaintiff might
recover for the actual damage
done to the com which was in-

[ *46 ]

2

jured by the weather, but not for the
loss of profits which he would proba-
bly have made. Haven »v. Wakefield,
39 Ill. 509. See, also, the same rule
applied where the defendant failed to
complete a boat hull within the time
agreed, to wit, that the actual loss, and
not the loss or probable profits, was
the measure. Taylor v. Maguire, 13
Mo. 517. In Davis o. Talcott, 14 Barb.
(N. Y.) 611, the defendant contracted
to put up certain machinery for the
plaintiff within a certain time, and of
a certain quality and agreed to pay all
damages if it proved insufficient. It
did prove insufficient and the court
held that the plaintiff could recover
such sum as would be necessary to put
the machinery in the condition contem-
plated by the parties and such sum as
the mill would have earned during the
time it was necessarily idle in conse-
quence of such defects, taking the
fair, ordinary net profits.
86 GENERAL Princietes or Damaae.

Sec. 58. Cases where profits not allowed for.

Numerous instances will occur in the course of this work in which
loss of profits has been rejected as an element in damages. A few
instances, however, may be mentioned here as further illustrating
the rule. In detinue for not returning scrip it was ruled by Cress-
WELL, J., that no damages could be given for the loss sustained by
the plaintiff, in consequence of the detention of the shares having
prevented his paying up deposits, which would have entitled him to
an allotment of one thousand other shares, as this damage was too
remote.’ So where an auctioneer entered -into an agreement on
‘behalf of defendant to sell premises to plaintiff, without having
communicated the treaty to the former. The defendant had in the
meantime sold to a third party. An action was brought for breach
of contract, and the same learned judge held that no damages could
be given for the loss of the plaintiff’s bargain, saying, “ his real loss
‘is the loss of the use of the 502. paid as deposit, and the expenses in-
curred by him to his attorney, and this, I think, is all that he can
recover.” * Jn another case the contract was to demise a ferry and
premises, and the plaintiff was promoter of a company provisionally
registered for the purpose of working the ferry, and was also its solici-
tor. No title could be made out, and in an action against the vendor,
it was held that the plaintiff could not recover for loss of profits from
‘the granting of the lease and the establishment of the association ; nor
the profits he would have derived from being employed as solicitor
by the association, nor in respect of any advantage he would have
derived from his time, labor, etc., employed in the formation of the
association.” There is one case in which there seems to have been
a difference of opinion between two learned judges. <A prize had
been offered for the best model of a machine for loading barges. The
plaintiff had sent one by *railway, but, through the negli-
gence of the defendant, it arrived too late, and the plaintiff
lost his chance of the prize.

A question arose as to the measure of damages, whether it was
the value of the work and materials, or whether the prize might be
taken into consideration. Parrsson, J., seemed to thinkit might. He

[*47]

' Archer 0. Williams, 2 C. K. 26. See upon this point, post, p. 168, e¢

? Tyrer » King, 2 C.& K. 151. seq.
3 Hanslip ». Padwick, 5 Ex. 615.
Remotrensss or DamaGeE. 87

said, “The plaintiff had put his damage upon a right principle, for
he said the goods were made for a specific purpose, which has been
defeated by the negligence of the defendant, and they have become
useless.” Erez, J., said, “I have had great doubts whether that
chance was not too remote and contingent to be the subject of dam-
ages.”* No decision was given, as the case went off upon a differ.
ent point. It is apprehended, however, that the opinion of Ertz, -
J., was the true one. The question seems to come to this: was the
plaintiffs chance of winning the prize a matter of such an ascer-
tainable value at'the time of entering into the contract of carriage,
as to have been capable of contemplation by both parties? If it
was not ascertainable then, it is difficult to see how it could have
formed part of the contract, and if it did not form part of the con-
tract, it could not enter into the damages for breach. Suppose the
same carrier had been intrusted with all the models sent for compe-
tition, and delayed them all, should he pay the amount of the prize
to each, or apportion it among them, or how? Even if the actual
judges gave evidence that a particular model would have won the
prize, still this would be matter ew post facto, not known at the
time of the bargain, and forming no part of it. The case is very
like one alluded to by Lord Ex:ienporouen, as having been fre-
quently mentioned by Lord Atvantey, where the plaintiff com-
plained of false imprisonment, per quod, being confined on shore, he
lost a lieutenancy. This was taken as an ad abswrdum case. Would
it have made any difference if the plaintiff had been delayed in a
train when traveling to London to be examined for his commis-
sion ¢?

Sec. 59. Scotch law as to profits.

* It may be well to state, that according to the Scotch law,
loss of profits may be included in the estimate of damages.
It was on this ground that Dunlop v. Higgins was decided in the

[*48 ]

1 Watson v. Ambergate Ry. Co., 15
Jur. 448,

* Boyce v. Bayliffe, 1 Campb. 58.
Recently, in a case somewhat resemb-
ling that put by Lord ALvanuzy, an
attempt was made to recover special
‘damages for the loss of a situation
which the plaintiff alleged that he

+ would have obtained but for the false

imprisonment which. formed the sub-
ject of the action, but the damages
were held to be too remote. Hoey v.
Felton, 11 C. B. (N. 8.) 142; 31 L. J.
C. P.105. See, also, Burton v. Pink-
erton, L. R., 2 Ex. 340; 36 L. J. Ex.
187.
88 GeveraL Pruvoretes or Damage.

House of Lords.! It was an appeal from a Scotch court; and it was
held that in an action in that country, for non-delivery of goods ac-
cording to contract, the damages were not restricted to the difference
between the contract and market price, but that the plaintiff might
recover in respect of the profits which he would have made by a
contract of resale into which he had entered. This decision is in
‘itself no authority in England, as it turned upon the acknowledged
difference between the law of the two countries in this respect. It
is remarkable, however, for a vigorous onslaught upon the English
law, by so formidable an opponent as Lord Corrennam, OC. He
said,’ “if pig-iron had only risen one shilling a ton in the market,
but the purchasers had lost 1,000/. upon a contract with a railway
company, in my opinion they ought not only to recover the dam-
age which would have arisen if they had gone into the market and
bought the iron at the increased price; but also that profit which
would have been received if the party had performed his contract.
No other rule is reconcilable with justice, nor with the duty which
the jury had to perform, that of deciding the amount of damage
which the party has suffered by the breach of his contract.” But,
with the greatest possible respect, it may be suggested that the rule
most reconcilable with justice would be to inquire what was the
contract, and what were the liabilities really entered into by the
parties? The question is not, what profit the plaintiff might have
made, but what profit he professed to be purchasing. Not what
damage he actually suffered, but what the other contemplated and
undertook to pay for. It is quite clear that loss of profits by a re-
sale can never be contemplated, unless the resale has actually taken
place at the time, and is communicated to the other party. The
reason is, that such a profit is utterly incapable of valuation. It
may depend upon a change of weather, a scientific discovery, an
[#49] outbreakof war, a * workmen’s strike. It will depend upon

the energy and sagacity of the person who purchases the
goods, and the solvency of the person to whom he sells them again.
In short, if the Scotch rule were to be carried out to its fair extent,
no one could contract to sell goods which were not actually in his pos-
session, without charging an additional premium, commensurate to
the profits which the vendee might possibly make, and for which he

11H. L. Ca. 381. 21H. L. Ca. 403,
Remoreness or Damacn. 89

himself would have to pay, if prevented from carrying out his
agreement.!

Sec. 60. Damages remote from want of connection with cause of action.

All the previous cases, according to English law, are resolved by
answering the question — Is the particular result such as might have
been contemplated by the parties, as naturally flowing from the act
done? The same question, upon the same principle, solves a num-
ber of other cases, in which profits do not come into consideration.
For instance: the defendant libeled a concert singer, who, in conse-
quence, refused to sing at the plaintiffs oratorio, for fear of being
badly received. It was held that his damage to the plaintiff was not
sufficiently connected with the act of the defendant to entitle the
former to an action. It is said that the refusal to sing might have
proceeded from groundless apprehension, or caprice, or some com-

pletely different cause.’

? This reasoning was cited with ap-
probation by Crompton, J., and
BuackBoury, J., in Williams v. Reyn-
olds, 6B. &S. 495; 34 L. J. Q. B.
221.

? Ashley v. Harrison, 1 Esp. 49. In
Carter v. Towne, 103 Mass. 507, the
defendant sold gunpowder to a boy
eight years old, who, in the absence
of his parents, took it home, placed it
in a cupboard, and afterward, with
the knowledge and consent of his
mother, fired it off and was injured by
the explosion. It was held that no
recovery could be had as there was no
necessary or natural connection be-
tween the injury and the sale of the
powder. In another case before the
same court, where the defendant sold
a customer napbtha, knowing that the
plaintiff intended to sell it for illumi-

. nating purposes to his customers and
also knowing its dangerous properties.
The vendee of the defendant sold
some of the naphtha to the plaintiff,
who, in ignorance of its explosive
qualities, used it for illuminating pur-
poses, and while burning some of it in
a lamp it exploded, and it was held
that the plaintiff could recover the
damages he sustained therefrom from
the defendant. Wellington ». Downer
Kerosene Oil Co., 104 Mass. 64.

In Prosser ». Jones, 41 Iowa, 674,

12

A still stronger case was where the de-

defendant agreed to thrash P.’s grain
whenever P. should require it to be
done; but he failed to keep his agree-
ment, but the court held that P. could
not recover for injury to the grain,
and for the labor and expense in tak-
ing care of it after performance had
been demanded.

In Friedland ». McNeil, 33 Mich. 40,
the defendant contracted to perform
the masonwork of a church within a
certain time. He failed to do so and
the court held ‘that pew rent lost by
the delay could not be embraced as
damages in an,action for the breach,
because such damages were not the
necessary, natural nor probable result
of the breach.

In Wood, etc., Assoc. ». Dubuque,
30 Iowa, 176, a bridge erected over a
slough of the Mississippi, and as a part
of the highway from the business part
of the city of Dubuque to a levee, be-
came impassable for want of repairs by
reason of which the plaintiff was
unable to transport over it a lot of
wood which had been collected at the
levee for that purpose, and the same
was, while lying there under these
circumstances, washed away, and
the plaintiff claimedto recover for such
wood so lost. The court held that the
damages were too remote to form the
basis of an action.
90 GENERAL PrinoreLes or DamaAcE.

fendant, by beating an actor, prevented his performing, and the
injury to the manager of the theater was also held to be too remote.'
The same principle has been applied in cases of slander, where the
words used were not in themselves defamatory, though by a strained
construction they were so understood. The plaintiff was a shop-
woman, and the defendant had said of her, “she secreted one shil-
ling and sixpence under the till; stating these are not times to be
robbed.” In consequence of these words 8. refused to employ her.
It was held that no action lay. “If §. refused to take the plaintiff
into his employ on this account, he acted without reasonable cause ;
and in order to make words actionable, they must be such that spe-
cial damage may *be the fair and natural result of them.”? In
one case, the court exercised rather a perverse ingenuity in
holding damage to be insufficiently shown. The plaintiff was a
dealer in the funds, and the words were, “he isa lame duck,” which
in Stock Exchange parlance mean, a person unable to fulfill his con-
tracts. The court said that the contracts alluded to might be unlaw-
ful, and if so, no special damage could follow from a charge that he
had not done what the law prohibits. It seems rather hard on the
plaintiff to assume, for the sake of letting him be abused, that he was
acting illegally.” On the other hand, where words, which in them-
selves import an accusation, are uttered in presence of a third per-
son, who acts upon them to the injury of the plaintiff, in such a man-
ner as might naturally have been expected, it is no matter whether
the third person believed the accusation or not, if his conduct was
in fact caused by the accusation being made. This may be illus-
trated by a case where the defendant came to his tenant, by whom
the plaintiff was employed, and in whose house she lodged, and used
language ascribing licentious conduct to her. The tenant disbelieved
the charge, but turned the plaintiff away for fear of displeasing the
landlord.* In either view the language was clearly the immediate
and probable result of the words used.

[*50]

1 Taylor v. Neri,.1 Esp. 386; but con- * Per Taunton, J., Kelly v. Parting- ,
siderable doubts were thrown upon the ton, 5 B. & Ad. 645, 650.
authority of this decision in the case ® Morris v. Langdale, 2 B. & P. 284.
of Lumley ». Gye, 2 HE. & B. 216; 22 Knight v. Gibbs, 1 Ad. & El. 48.
L. J, Q B, 463.
Remotensss or Damage. 91

Sec. 61. Remote consequences not a ground of action.

In a case where commissioners of an inland navigation executed a
lease of a canal for a term of years pursuant to a statute, which en-
acted that in case the lessee should permit the works td be out of re-
pair the commissioners should give him notice to repair, and on his
neglecting to do so might do the repairs and pay the expenses out
of the tolls, a lock forming part of the navigation fell in, and the
plaintiff's barge was delayed. The lock had been out of repair to the
knowledge of the commissioners, but they had given no notice to the
lessee. The plaintiff claimed from the commissioners damages for the
delay, but it was held that, assuming an action to lie against the com-
missioners for not having given notice to the lessee to repair, the
damage to the plaintiff was not the proximate *natural result
‘of that breach. It did not follow, that if they had given the
notice the repairs would have been done.* And, in another case, a
declaration stating that the defendant conspired and combined with
a confederate to take the plaintiff’s premises and set up illicit stills
there, and, by falsely pretending that the premises were wanted for
a lawful and innocent trade, induced the plaintiff to let the premises
to the confederate, and permit him and the defendant to take pos-
session, whereupon they set up the still and represented the plain-
tiff to be the proprietor, by reason of which he was convicted of
aiding and abetting in the illicit distillation, was held bad on de-
murrer, the damage not being the legitimate consequence of the
defendant’s acts.”

[*51]

Sec. 62. Damage arising from non-repair of fences.

There are two old cases in which the defendant was sued for con-
sequential damage, arising from non-repair of his fences. In one
case the plaintiff's cattle strayed into defendant’s close and thence:
upon the land of W., who sued the plaintiff, which was the damage
complained of.* In another, the plaintiff’s mare went through a
gap, and falling into a ditch was drowned.* In neither of these

1 Walker v. Goe, 3 H. & N.395; 27 example of damage too remote in an
L. J. Ex. 427; affirmed, 4H. & N. action of false representation, Collins
850; 28 L. J. Ex. 184. See, also, »o. Cave, 4H. & N. 225; 30 L. J. Ex.
Wood, etc., Assn. v. Dubuque, 30. 55.

Iowa, 176. 3 Holbach v», Warner, Cro. Jac. 665.

? Barber ». Lesiter, 7 C. B. (N. 8.) 4 Anon., 1 Ventr. 264.

175; 29L. J. C. P. 161. See, for an
92 General Princietes oF Damace.

cases was any objection taken on account of the remoteness. They
were affirmed and relied upon in a more modern case, where the
damage resulting from a similar non-repair of fences was, that the
plaintiff's horse escaped into the defendant’s close, and was there
killed by the falling of a haystack.! Here the objection that the
damage was too remote was expressly taken and overruled..

Sec. 63. Damage from acts of animals.
Bilis v. Loftus.

Cox v. Burbridge — Lee v. Riley —

in some recent cases the liability to damages for injuries resulting
from the escape of animals was decided upon reasonings which,
though uniform in principle, were rather varied in application. In
[*52 J Cox v. Burbridge,’ the defendant’s horse *had strayed on
the highway, and then kicked the plaintiffs child, which was

the injury complained of. There was no evidence why the horse
had kicked the child, except that it did not arise from any fault of
the child. It was held that the owner was not liable, as it did not
appear that he knew the horse was vicious. The judges said that
they assumed that the horse was a trespasser, and that for all natu-
ral results of his trespass, such as eating grass, trampling the soil,
and the like, the owner would be liable, and that, whether the
escape of the horse resulted from negligence or not ; but that it was

1-Powell o. Salisbury, 2 Y. &J. 391;
Lawrence v. Jenkins, L. R., 8 Q. B.
274; 42 L. J. Q. B. 147; Dawson 2.
Mid. Ry., L. R., 8 Ex. 8; 42 J. Ex. 49.
See, too, Sneesby a. L. & Y. Ry., L. R.,
9Q. B. 263; 43 L. J. Q. B. 69; affirmed
1 Q. B. D. 42; 45 L. J. Q. B. 1.

In Iowa, in the case of Herold ».
Meyers, 20 Iowa, 378, an ox, which was
allowed by the owners to graze on a
public common, which was not in-
closed by a lawful fence, died in con-
sequence of eating too much corn
thereon. It was held that the plain-
tiff could not recover the value of the
ox of the owner of the corn, as the
owner of the corn was under no obli-
gation to fence his field as against the
public, as the right to pasture cattle,
upon commons, was permissive only.

*13 C. B. 480; 32 L. J.C. P. 89.

As to the liability of the owners of
vicious animals permitted to be at large,
as cattle, see Cockersham v. Nixon, 11
Ired. (N. C.) 269; Earhart 0. Young-

blood, 27 Penn. St. 331; Hewes v. Mc-
Namara, 106 Mass. 281; horses, Dick-
son v. McCoy, 39 N. Y. 401; Goodman
vo. Gay, 15 Penn. St. 188; jacks, Wil-
liams v. Dixon, 65 No. Car. 416; rams,
Oakes v. Spaulding, 40 Vt. 347; bees,
etc., Earl v, Van Alstyne, 8 Barb. (N.
Y.) 680. But in all cases, except for

‘such injuries as naturally follow their

escape, the scienter must be alleged
and proved. Van Leuven »v. Lyke, 1
N. Y. 515; Tifft o. Tifft, 4 Den. (N.
Y.) 175. Ifa person takes or permits
an animal to escape upon the premises
of another, thatis infected with an in-
fectious disease, he is liable for all
damages done thereby by the disease
being communicated to other animals:
as horses, affected with the glanders.
Mills ». N. Y. & H.R. R. Co., 2 Robt.
(N. Y. Supr. Ct.) 3826; or cattle af-
fected with pleuro-pneumonia, or
sheep with the foot-rot. Walker 2.
Herron, 22 Tex. 55; Fisher ». Clark,
41 Barb. (N. Y.) 329.
Remoreness or Damage. 93

not a natural thing for a horse to kick a child unless he was vicious.
And, therefore, the owner could not be liable for an act which only
a vicious animal would do, unless he knew of its vice. A contrary
decision was arrived at in two later cases, the agent in each being
also a horse, but the sufferer being a horse also instead of a child.
In one case the horse strayed through defect of a gate which the
defendant was bound to repair, and, getting into the plaintiff's
field, kicked his horse. In the other, the plaintiffs and defendant’s
fields were separated by a wire fence. In the plaintifi’s field was a
mare, and in the defendant’s field was a stud. The stallion and the
mare came together at the fence, and then the former bit and kicked
at the latter through it, thereby injuring her. In both cases the de-
fendant was held liable. In the former there was no evidence that
the horse offending was vicious. In the latter, there was direct evi-
dence that he was of as quiet a temper as a horse need be.’ In each
case the judgment was rested upon the ground that the horse was a
trespasser, and that his act was the natural and direct consequence
of his coming in contact with the other horse. In Cox v. Burbridge
the court had held that there was no evidence of negligence or
breach of duty on the defendant’s part, as leading to the trespassing
of the horse. In Ellis v. Loftus the court held that there was neg-
ligence on the defendant’s part, but that the action being one of
trespass, the defendant would have been equally liable if he had
done every thing in his power to keep his horse from trespassing,
but had in fact failed. The *only difference between the

. ., | *53 |
two cases, therefore, seems to be, that the judges thought it °
was natural for a stray horse to kick another horse, but unnatural
for him to kick a child. That it is natural for a stallion to bite and
kick a mare is beyond all doubt. In the case of Lee v. Riley it was
the mare who kicked the horse, which was perhaps equally natural.
If in any future case both animals are geldings, an interesting ques-
tion as to horse nature will arise.

Sec. 64. Act which prevents payment of money.

It is said in one old case, that where a master sends his servant to
pay money for him upon the penalty of a bond, and in his way a

1 Lee v, Riley, 18 C. B. (N. S.) 722; Co, L, R, 100, P, 10; 44L,35,0,P.
34L. J. C. P. 212; Ellis o. Loftus Iron 24,
94 GeneraL Princrptes or DamaaeE.

smith in shoeing doth prick his horse, and so by reason of this the
money is not paid, this being the servant’s horse, he shall have an
action upon the case for pricking of his horse; and the master also
shall have his action upon the case for the specific wrong which he
has sustained by non-payment of his money, occasioned by this.
This case is cited by Parxz, B.,* with the remark that, “ that cause
of action is certainly rather remote.” I conceive that such damage
could not be allowed for in the present day, evert though the master
were owner of the horse as well as the money.

Sec. 65. Damage remote when caused by plaintiff’s own act.

Damage will obviously be too remote when it is caused, wholly
or principally, by the act of the plaintiff himself; it cannot then
be regarded as the necessary result of the defendant’s misconduct.
Hence, where the captain of a ship had wrongfully imprisoned the
plaintiff, and some time after his release, on touching land, the
plaintiff changed into another ship, it was decided that he could not
recover as damages the costsso incurred. Lord E1zenporoves said,
the special damage should be closely connected with the trespass
which was the foundation of the action. Here the imprisonment
was not the causa proxima of the transshipment. The latter was
remote in point of time, and the plaintiff was not driven to it to re-
deem himself from any great peril or grievance.* A more recent
case stands on the same principle. The plaintiff had taken a pass-
age to Australia in the defendant’s vessel, but was not allowed to
sail on account of a *mistaken belief that he had not paid
his entire fare. The error was found out immediately, and he
was offered a passage in another vessel which sailed a week after the
first. Instead of going by it, he remained in England till Decem-
ber, to sue the defendant. It was held that the expenses of his
keep till trial could not be allowed as damages, since he might have
gone long ago if he had wished; they might, however, be allowed
as costs, if his evidence was necessary, and it was fit that he should
have been kept as a witness.’

And upon the same principle a passenger who was removed from
a railway carriage by the servants of the railway company, under

[#4]

Everard v. Hopkins, 2 Bulst. 332. 4 Ansett v. Marshall, 22 L. J. Q. B.
26 Ex. 764. 118; 1 B.C. ©. 147, 8. C.
* Boyce ». Bayliffe, 1 Camp. 58.
Remotenrss or DamaceE. 95

circumstances which did not justify the removal, was held not en-
titled to recover the value of a pair of race-glasses which he neg-
ligently left in the carriage and which were lost.1_ And the owners
of a ship which had been run into by another ship, though entitled
to recover for damage which was the immediate consequence of the
collision, were held entitled not to recover for damage which resulted
from the master’s refusing assistance offered to him, and failing to
use ordinary skill in attempting to save his ship after the collision.’

Sec. 66. Cases of contributory negligence.

This rule is frequently brought to bear in actions on the case for
negligence, where the question is, whether the injury was so com-
pletely the result of the defendant’s act as to support the declara-
tion.” Where A placed lime rubbish in the highway, which blowing
into the face of B’s horse frightened it, so that it nearly dashed
against a passing wagon, and in his efforts to avoid it B unskillfully
drove against another heap of rubbish, and was overset and hurt, it
was held that he could not recover against A.*

Sec. 67. Where plaintiff may recover though himself in fault.

But the rule has been laid down and repeatedly recognized that
although there may have been negligence on the part of the plain-
tiff, yet unless he might, by the exercise of ordinary care, have
avoided the consequence of the defendant’s negligence, *he
oa ' [*55]
is entitled to recover; if by ordinary care he might have
avoided them he is the author of his own wrong.’

‘1 Glover v. L. & 8. W. Ry. Co., L.
R., 3 Q. B. 25; 87 L. J. Q. B. 57.
See, also, Hill o. Balls, post, p. 168.

2? The Flying Fish, 34 L. J. Adm.
113, in the privy council, In such a
case the plaintiff is entitled to recover
the expenses incurred in endeavoring
to save the cargo and the expense
necessarily incurred in retaining the
crew during the period that the boat
is disabled. Hoffman v. Union Ferry
Co., 68 N. Y. 386.

3 Butterfield v. Forrester, 11 East,
60; Holden v. Liverpool Gas Co., 8 C.
B. 1; Gen. Steam Nav. Co. v. Mann,
14 id. 127; Cotton ». Wood, 8 C.
B. (N.S.) 568; 29L. J.C. P. 333;
Martin vo. G. N. Ry., 16°C. B. 179.

4 Flower o. Adam, 2 Taunt. 314.

* Bridges ». G. Junc. Ry., 3 M.
& W. 244, 248; Davis ». Mann, 10 M.
& W. 546; Elliso. L. & 8. W. Ry. Co.,
2H. & N. 424; 26 LJ. Ex. 349;
Singleton v. Williamson, 7 H. & N.
410; 31 L. J. Ex. 17; Thompson v. N.
E. Ry. Co., 2 B.& 8. 106; 30 L. J. Q.
B. 67; affirmed, 2-B. & 8. 19; 31 L.
J. Q. B. 194; Skeltan vo. L. & N. W.
Ry. Co. L. R., 2C. P. 681; 36 L. J.
C. P. 249; Smith o. St. Lawrence, L.
R., 5 P. C. 308; Beal v. Marchais, L.
R., 5 id. 316. A person cannot re-
cover for an injury received by reason
of the negligence of another, if his
own want of care directly contributed
to the injury—for, where one rushes
upon danger, which by the exercise of
ordinary care on his part might have
96 GeneraL Provoretes or Damacs.

Sec. 68. Rule laid down by the house of lords.

The law upon this point has been recently affirmed in the house
of lords as consisting of the two following propositions: “The
first is a general one, to this effect, that the plaintiff in an action for
negligence cannot succeed if it is found by the jury that he has
himself been guilty of any negligence or want of ordinary care
which contributed to cause the accident. But there is another propo-
sition equally well-established, and it isa qualification upon the
first ; namely, that though the plaintiff may have been guilty of
negligence, and although that negligence may, in fact, have con-
tributed to the accident, yet if the defendant could, in the result,
by the exercise of ordinary care and diligence, have avoided the
mischief which happened, the plaintiffs negligence will not excuse
him.” ! Herice, where the immediate cause of the accident is the
defendant’s fault, so that without it the accident could not have
happened at all, it is no answer that only for the plaintiff's negli-

been avoided, he cannot complain be-
cause others have failed to exercise a
greater degree of care than himself.
But, even though he was in a measure
negligent, yet, unless his negligence
is the proximate cause of the injury,
he is not precluded from a recovery.
The plaintiff must have contributed
to the injury. That is, by his own
want of ordinary care, he must have
done that which has directly brought
it about, and placed himself or his
property in a position where, except
for his co-operating fault, no injury
would have been sustained, and this
must be such an act as a man of ordin-
ary prudence would not have done, in
view of all the circumstances. If,
however, the act of the defendant was
the proximate cause of the injury, aud
was such asa man of ordinary pru-
dence would not have anticipated, the
plaintiff cannot be charged with that
degree of negligence which operates
to excuse the negligence of the de-
fendant, Lindsey 0. Danville, 45 Vt.
72; Newhouse 2. Miller, 35 Ind. 463;
Stiles » Geesey, 71 Penn. St. 439;
Devitt v. Pacific R. R. Co. 50 Mo.
302; Haight ». N. Y. Cent, R. R. Co.,

7 Lans. (N. Y.) 11; Toledo, etc., R.
R. Co. v. Pindar, 53 Ill. 447; Hackett
v. Middlesex Mfg. Co., 101 Mass, 101.
And in all cases the question whether
the plaintiff has been guilty of negli-
gence contributing to the injury isa
question of fact for the jury. It is a
mixed question of law and fact, to be
determined by the circumstances of
each case. Penn. Canal Co. v, Bentley,
66 Penn. St. 830; Greenleaf ». Ill. Cent.
R. R. Co., 29 Iowa, 14; Belton 0. Bax-
ter, 2 Sweeny (N. Y.), 389; Jenkins ».
Little Miami R. R. Co., 2 Disney
(Ohiv), 49; Maloy ». N. Y., etc., R.
R. Co., 58 Barb. (N. Y.) 182; Bern-
hardt v.Rens. & Sar. R. R. Co., 1 Abb.
Ct. App. (N. Y.) 131; Jetter o. N. Y.
& Harlem R. R. Co., 2 id. 458; Filer
o. N. Y. Cent. R. R. Co., 49 N. Y. 47.
And the question should never be
withdrawn from the jury when there
is any conflict in the evidence. Bern-
hardt 7 R. & 8S. R. Co., ante; Ru-
dolphy ». Fuchs, 44 How. Pr. (N.
Y.) 155; Barton v. St. Louis, etc., R.
R. Co., 52 Mo, 253; Keller 0 N. Y.
Cent. R. R. Co., 2 Abb. Ct. App. (N.
Y.) 480; Baltimore, etc., R. R. Co. ».
State, 36 Md. 366.

‘Radley vo. L. & N. W. Ry. Co., 1 App. Cas. 754, 759.
Remoreness of Damaae. 97

gence in something collateral to the immediate cause of the injury,
it or part of it might have been avoided. For instance, where two
omnibuses were racing, and one struck against the other, it appeared
that, if the omnibus in which the plaintiff was riding had been
driving slower, it might have been pulled up after the collision, and
the accident prevented.!. And so where the injury to plaintiff was
caused by a steamboat collision, in which the plaintiff was hurt by-
the falling of an anchor in his own vessel; held, that even if it
had been shown that the anchor had been negligently stowed, and
that the plaintiff ought not to have been in that part of the vessel
(which, however, the jury negatived), this would have been no
answer: that a man who is guilty of a wrong, and thereby pro-
duces injury to another, has no right to say, “part of that mischief
would not have arisen if you yourself had not been guilty of [* 56]
*some negligence,” and that where the negligence of the
party injured did not in any degree contribute to the immediate
cause of the accident, such negligence ought not to be set up as an
answer.” In both the last-named cases Pottocg, C. B., expressed a
strong doubt whether a man is responsible for all the consequences
that may under any circumstances arise, in respect of mischief,
which by no possibility could he have foreseén, and which no
reasonable person could be called on to have anticipated. He inti-
mated that the rule was that a man is expected to guard against all
reasonable consequences.

Sec. 69. Cases in which plaintiff is a trespasser.

As an illustration both of the principle of these cases, and of the
limitation suggested by the lord chief baron, may be mentioned a
case in which it was held that a person making an unfenced exca-
vation on his own land, near a public highway, was responsible for
any injury caused by falling into it, though the person injured was
in fact a trespasser.” But there the excavation was so near the road
asto be dangerous to persons walking along it, who might stray

1 Rigby v. Hewitt, 5 Ex. 240. tion Co.,5 E. & B. 195; 26L. J. Q.
Greenland »v. Chaplin, 5 Ex, 243. B. 59.
See, also, Tuff v. Warman, 2 C. B. (N. 3 Barnes v. Ward, 9C. B. 392. See,
8.) 740; 26 L. J. C. P. 263, affirmed, too, John v. Bacon, L. R., 5 C. P. 487;
in Ex. Ch. 5 C. B. (N. 8.) 578; 27 L. 39 L. J. ©. P. 365.
J.C, P. 822; Dowell v. Steam Naviga-

13
98

GeneRAL Princrptes oF Damage.

from the path even while exercising ordinary caution. The injury
was one which might have been anticipated. But a man could not
be answerable for the result of digging a hole in a field far removed
from any path, and where he could not have contemplated that any

one would come.
tially adjoining the highway.1

‘Hardcastle v. §. Yorkshire Ry.
Co., 4H. & N. 67; 28 L. J. Ex. 139;
Hounsell ». Smyth, 7C. B. (N. 8.)
731; 29 L. J. ©. P. 203; Binks ». 8.
Yorkshire Ry. Co., 3B. & 8S. 244; 32
L. J. Q. B. 26. In Beck ». Carter, 68
N. Y. 283, this doctrine was ably dis-
cussed and what seems to be the true
tule established. In that case the de-
fendant’s testator who, in his life-time,
owned certain premises in Bath; used
for hotel, fronting upon a street and
bounded on one side by a public
thoroughfare or alley, had for a long
time allowed a portion of the prem-
ises adjoining the street to be used by
the public as a public place and asa
portion of the highway. The bound-
ary line of the alley was in no way
marked out or defined. The defend-
ant’s testator subsequently erected a
building upon such portion of his
premises and made an excavation by
the side thereof and about ten feet
from the line of the alley. The pub-
lic continued to travel over the space
between the building and the alley.
The plaintiff, in traveling over the
same ona dark night, fell into the
excavation and was injured. Prior
to the injury the excavation had been
covered over with boards, but these
had been removed. It was held that
the circumstances imposed a duty
upon the defendant to protect the ex-
cavation, and that for neglect of this
duty, he was liable to the plaintiff.
The opinion of ANDREWS, J., con-
tains such a fair and thorough review
of the cases, and expresses so clearly
what I regard as the true rule in such
case, that I give the main portion of it
here. He said: ‘‘It cannot be held
upon the evidence that the plaintiff
was a trespasser in going there. There
was, it is true, no public easement or
right of way over the defendant's lot.
It was his private property, and he
had the right to its exclusive posses-

The test is whether the excavation is substan-

sion. He could have inclosed it and
excluded the plaintiff and all other
persons from going upon and passing
over it. But from the time the “ United
States ” hotel building was erected in
1856, until it was burned in 1868, the
public had been permitted to pass
over the vacant part of the lot front-
ing on Buell street and the alley,
without objection. In going from Buell
street to the alley, and from the alley
to Buell street, this part of the defend-
ant’s lot, fifty feet back from Buell
street, was traversed by foot passengers
and was used as a part of the streets.
There was no intent to permanently
dedicate the lot or any part of it asa
public place or highway, but the front
of the lot was known as Exchange
Place, and the public used it, and the
defendant and his grantors, by their
silence, assented to its use. This use
was not occasional or infrequent.
The lot was in a business portion of a
populous village, and near to public
places where the inhabitants had fre-
quent occasion to go. The same use
was permitted and continued after
1868 until it was prevented in part by
the erection of the defendant’s build-
ing on a portion of the theretofore
vacant space. The public still con-
tinued to pass over the lot on the west
side of the building after the walls
were up, to a point within two or
three feet therefrom. There was
never any revocation of the license, or
permission to the public to use the lot
as they had been accustomed, except
as the building operated to exclude
the public from the space it occupied.
The owner of land is not bound by
the common law to fence his land, or
in any way to mark the boundaries of
his possession, Wells ». Howell, 19
Johns. (N. Y.) 385; Stafford v. Inger-
sol, 3 Hill (N. Y.), 38. He may leave
it open, and a person entering thereon
without permission is a trespasser, and
Remotenrss or DamaGE.

99

There would be a strong analogy between such a case and one

subsequently decided under different circumstances.

had contracted to carry plaintifi’s

it is no excuse that the entry was
made innocently and by mistake, and
the rule is the same in respect toa
traveler on a highway who, without
necessity, goes therefrom on to the
adjoining land. .The owner of land
may also make an excavation on his
own premises, and is not bound to
fence it for the protection of persons
not lawfully on the land.

This is the general rule, and rests
upon the right of the owner to use his
property as he pleases, and in the
absence of special circumstances if a
person traveling on a highway devi-
ates therefrom and falls into a pit or
excavation on the adjacent land, the
owner is not responsible for the result-
ing injury. One of the earliest cases
on this subject is Blithe v. Topham,
Cro. Jac. 158, where it is said that if
A, being seized of a waste adjoining
a highway, digs a pit in the waste
within thirty-six feet of the way, and
the mare of B escaped into the waste,
and falls into the pit and is killed, yet
B shall not have an action against A
because, the making of the pit in the
waste and not in the highway was no
wrong to B, but it was by default of
B himself that his mare escaped into
the waste. In that case, as was said
by Grass, C. J., in Dean . Clayton, 7
Taunt. 532, ‘‘ the defendant was held
not to be amenable for the damage
done to the plaintiff’s mare, because
the mare had no right to be on the
land where the pit into which she fell
was dug.”

The cases of Hardcastle ». The
South Yorkshire Railroad Company,
4H. & N. 67, and Binks o. The same
company, 3 B. & S. 344, were decided
upon the same principle. In the
former the plaintifi’s intestate started
in the evening to walk from Rother-
ham to Sheffield upon an ancient foot-
way, and instead of following a turn
inthe way, by mistake and without
negligence on his part, as the jury
found, missed the path, and proceeded
ina straight direction about twenty
feet, to a reservoir constructed by the
defendants’ predecessors about twenty-

The defendant
goods, and the plaintiff, by con-

four years before, which was left un-
guarded, and fell in and was drowned.
The court set aside the verdict for the
plaintiff. Porztock, C. B., in deliv-
ering the opinion of the court, after
referring to the case of Barnes 2.
Ward, 9 C. B. 392, where the defend-
ants, who had excavated an area ad-
joining a public way, and left it un-
protected, were held liable for an in-
jury to a person who, in passing along
the way, fell into it, said, “ When an
excavation is made adjoining a public
way, so that a person walking upon it
might, by making a false step, or being
affected by giddiness, or, in the case
of a horse or carriage-way, might, by
the sudden stumbling of a horse, be
thrown into the excavation, it is rea-
sonable that the person making
such excavation should be liable for
the consequences; but when the exca-
vation is made at some distance from
the way, and the person falling into it
would be atrespasser upon the defend-
ant’s land before he reached it, the
case seems to us to be different,” and
he adds: ‘‘ We think the true test of
legal liability is whether the excava-
tion be substantially adjoining the
way.” The case of Binks ». The
South Yorkshire Railroad Company,
was in many respects similar to the
one just referred to. The deceased
fell into a canal twenty-two feet or,
thereabouts from the foot-way, which
was unprotected, and was drowned.
The case was decided upon the au-
thority of the case of Hardcastle.

It is upon these authorities that the
defendant’s counsel mainly rely for
the reversal of the judgment. But
we think they so far differ in their
circumstances from the case before us
as not to require the same judgment.
It is to be observed that the rule laid
down in Blithe o. Topham has been
qualified by subsequent cases. which
hold that if the excavation is adja-
cent to the highway, or as near thereto
as to make the use of the highway un-
safe or dangerous, the person making
it will be answerable to a traveler,
who, while using ordinary care, falls
100

 

GENERAL PrinorLes or Damage.

sent of the defendant’s carman, got into the cart, which broke down.
The plaintiff was held not to be entitled to recover for the personal

damage.

into it and is injured, although the
excavation is wholly on the land of
the defendant. This question was
greatly considered in Barnes ». Ward,
and the doctrine of Blithe v. Topham
was thus limited. In Barnes ». Ward
the way was separated from the area
into which the plaintiff fell by a curb-
stone. The Hardcastle case recog-
nized the authority of Barnes o. Ward,
and in Hadley v. Taylor, L. R.,1C.
P. 58, the court sustained a verdict
for the plaintiff, who, while passing
along a highway, fell into a “ hoist-
hole,” on the defendant’s premises,
fourteen inches from the side of the
highway. Byes, J., after referring
to Barnes », Ward, remarked: ‘It is
extremely difficult to draw the line be-
tween what is and what is not such a
proximity to the highway as to con-
stitute an actionable nuisance.”

There is another distinction which,
we think, has an application in this
case. When the owner of land ex-
pressly, or by implication, invites a
person to come upon his land, he can-
not permit dny thing in the nature of a
snare to exist thereon, which results in
injury to the person who avails him-
self of the invitation, and who, at the
time, is exercising ordinary care with-
out being answerable for the conse-
quences. If, however, he gives but a
bare license or permission to cross his

. premises, the licensee takes the risk
of accidents in using the premises in
the condition in which theyare. The
cases of Corby v. Hill, 4C. B. (N. 8.)
556, and Hounsell». Smyth, 7 C. B.
(N. 8.) 730, illustrate this distinction.
In Corby v. Hill, the owner of land,
upon which was a private road lead-
ing to an asylum on his premises, for
‘the use of persons going there, gave
permission to a third person to place
materials on the road. The servant
of the plaintiff, in the night time,
while driving his master’s horse over
this road on his way to the asylum,
and using due care, ran upon and
against the materials placed in the way
by the defendant’s permission, and the
horse was injured, The defendant

The carman had no ‘authority to allow her into the

was held to be liable, and CockBurn,
C. J., said: ‘‘The proprietors of the
soil held out an allurement whereby
the plaintiff was induced to come up-
on the place in question; they held
out this road to all persons having oc-
casion to proceed to the asylum as the
means of access thereto. Could they
have justified the placing an obstruc-
tion across the way, whereby an in-
jury was occasioned to one using the
way by their invitation? Clearly,
they could not.” In Hounsell 2.
Smyth, the defendant was seized of
certain waste land, upon which was an
uninclosed quarry near to and be-
tween two public highways, and the
declaration averred that all persons
having occasion to pass over the
waste land had been accustomed to
go across the same with the license
and permission of the owners, and
that the plgintiff, having, in the
night time, taken the wrong road,
was crossing the waste for the pur-
pose of getting to the other, and
not being aware of the existence or
locality of the quarry, and being un-
able, by reason of the darkness, to
see it, fell in and was injured. It was
held that the declaration disclosed no
cause of action. The court said, ‘no
right is alleged; it is merely stated
that the owners allowed all persons
who chose to do so, for recreation or
for. business, to go upon the waste
without complaint; that they were not
churlish enough to interfere with any
person who went there. He must
take the permission with its concomit-
ant conditions and it may be perils.”

In this case we think the circum-
stances imposed a duty upon the de-
fendant to protect the excavation, It
was a new excavation, made long
after the public had been permitted to
use the lot. It was not the case of a
bare permission by the owner to cross
his land adjoining a public street.
The land had, by use long continued,
been made, for the time being, a pub-
lic place, and part of the highway.
It was very probable that injury
would occur if the area was left un-
Remorenrss or Damage. 101

cart, she was a mere trespasser! There is a somewhat
similar case in which a *contrary decision was arrived
at.

[*57

Sec. '70. Contributory negligence applies to infant plaintiffs.

A little child clambered into the defendant’s cart, while left unat-
tended, and fell out and was hurt, the horse being moved on. The
action was held to be maintainable.” The court of exchequer in the
case cited above attempted to distinguish Lynch v. Nurdin on the
ground of the tender years of the child, which made her not the sole
defaulter. Considerable discredit, however, was thrown upon the
decision, especially by Atprerson, B.* And it is now settled that the

doctrine of contributory negligence applies to infant plaintiffs.

covered. The boundary of the alley
was not defined, and persons crossing
the lot in the usual way were not tres-
passers. It is quite conceivable that
so long as the hotel building stood, it
was an advantage to the owner that
the unoccupied part of the lot should
be open to the public. We think the
defendant could not, under these cir-
cumstances, make a dangerous exca-
vation and leave it unprotected with-
out responsibility to those accustomed
to use the lot as part of the highway,
and who, while exercising due care,

1 Lygo v. Newbold, 9 Ex. 302; 23
L. J. Ex. 108. In Satterlee . Groat,
1 Wend. (N. Y.) 272, the defendant
sent his servant with his cart to get
B’s goods. C induced the servant to
carry his goods also, and while they
were being so carried some of them
were lost, it was held that the master
was not liable therefor.

2 Lynch v. Nurdin, 1 Q. B. 29. A
similar rule was adopted in Lane vy.
Atlantic Works, 107 Mass. 104. In
that case the defendant’s cart, con-
taining large iron castings, was left
upon the highway, near their works,
improperly secured, and some children
coming to the vicinity to play, took
hold of the wagon, and in attempt-
ing to mount, one of the castings rolled
off and injured one of the children,
and it was held that the defendants
were liable for the injury.

® See his remarks, 23 L. J. Ex. 110.

were injured by falling into it. The
court charged the jury that it made
‘no difference whether the excavation
was seven, or nine, or ten feet from the
originally established boundaries of the
thoroughfare (alley); if tt was 80 situ-
ated that a person lawfully using the
thoroughfare, and, in a reasonable man-
ner, was liable to fall into it, the defend-
ant was liable.” Construing the charge
with reference to the undisputed facts
in the case, it was not objectionable,
and the exception thereto was not well
taken.”

4 Singleton v. E. O. Ry. Co., 7 C. B.
(N. 8.) 287; Abbott » MacFie, and
Hughes v. MacFie, 2H. & C. 744; 38
L. J. Ex. 177; Mangan ». Atherton,
L. R., 1 Ex, 239; 35 L. J. Ex. 161.

The degree of caution required of a
child is to be measured by its matu-
rity and capacity, and the rule in ref-
erence to the negligence of adults and
of children is quite different. Hy-
draulic Works v. Orr, 83 Penn. St.
332; Government St. R. R. Co. v. Han-
lon, 53 Ala. 70; Baltimore, etc., R. R.
Co. v. McDonnell, 43 Md.534; Chicago,
etc., R. R. Co. v. Murray, 71 T1601. An
adult is bound to exercise such care
and caution as is ordinarily exercised
by persons of ordinary intelligence
and discretion, under similar circum-
stances. But the degree of care re-
quired to be exercised by a child is
made to depend upon its age and
knowledge. From a child of three
102

GeneRAL Prinorptes or Damage.

Sec. 71. Where both parties are to blame.

There is one case which seems contrary to the doctrine laid down
in Rigby v. Hewitt and Greenland v. Chaplin, viz.: that a party is
entitled to recover for the whole result of defendant’s negligence,
though in part attributable to himself. Where a barge was sunk by

years of age less care is required than
from one of seven, and from one of
seven than from one of twelve. R. R.
Co. v. Gladmon, 15 Wall. (U. 8.) 401;
Robinson v. Cone, 22 Vt. 218; R. R.
Co. v. Snyder, 18 Ohio St. 399; R. R.
Co. v. Mahoney, 57 Penn. St. 187;
Daley v. R. R. Co., 26 Conn. 591; and
in Illinois it is held that negligence
cannot be imputed to a child under
five years of age; R. R. Co. v. Gregory,
58 Ill. 226. A similar rule has been
held as toa child two years old; Nor-
folk, etc, R. R. Co. v. Ormsby, 27
Gratt. (Va.) 455; and as to a child five
years of age; McGarry v. Loomis, 63
N. Y. 104; and generally it may be
said that, as a matter of law, it is not
negligence per se for a child of sufii-
cient physical ability and discretion or
intelligence to go unattended in the
public streets. As to whether it is
negligence in fact, is a question for the
jury, taking all the circumstances af-
fecting the question into account.
Waite v.N. W.R. R. Co., El. BL. &
E. 719; Davidson v. Monkland R. R.
Co., Hay’s Dec. 217; Oldfield v. Har-
lem R. R. Co., 14 N. Y. 310; Callahan
v. Bean, 9 Allen (Mass.), 401; Boland
v. Mo. R. R. Co., 8€ Mo. 484; Robin-
son v. Cone, 22 Vt. 218. But it must
be remembered that in actions for in-
juries to children from the negligence
of another, a distinction is made be-
tween an action brought in the name
of the child, and one brought in the
name of the parent or guardian. While
negligence may not be imputed to the
child, so as to prevent a recovery in
its name, yet negligence might be im-
puted to the parent or guardian in
suffering the child to go unattended
in the street or place where the injury
occurred, But in all cases the pres-
ence of the child at the place where
the injury was received is open to ex-
planation, and the question becomes
one of fact purely. Mangam »v. Brook-
lyn City R. R. Co., 36 Barb. (N. Y.)

230; Lovett v. Salem, etc., R.R. Co.,
9 Allen (Mass.), 557; Chicago v. Starr,
42 Ill. 174. But in Indiana, New
York, and Massachusetts, there is no
distinction between an action in favor
of a child, and one in favor of the
parent or guardian, but the negligence
of the parent or guardian is held im-
putable to the child. Lafayette, etc.,
R. R. Co. v. Huffman, 28 Ind. 287;
Hartfield ». Roper, 21 Wend. (N. Y.)
615; Callahan v. Bean, 9 Allen (Mass. ),
401. But the courts hold that, as
matter of law, it is not negligence on
the part of parents to permit very
young children to go unattended in
the public streets. Oldfield v. Harlem
R. R. Co., 14 N. Y. 310; Drew 2.
Sixth Av. R. R. Co., 26 id. 49; Lovett
o. R. R. Co., 9 Allen (Mass.), 557.
The precise minimum age at which
permitting a child to go at large will
be regarded as negligence per se, has
not been fixed, but it has been held, in
some cases, that a child two years old
is competent; Boland v. Missouri R.
R. Co., 36 Mo. 484; whilein others it
has been held negligence per se to
allow children from seventeen months
to six years of age to be thus exposed.
Hartfield ». Roper, ante; Callahan 2.
Bean, ante; Kreigv. Wells, 1 E.D.S.
(N. Y.) 74. But in all cases such
exposure is open to explanation, and
may be reduced to a question of fact
rather than a question of law. As to
whether the parents of a child are
guilty of negligence in permitting it
to go unattended to the place where
the injury happened is a question of
fact for the jury, but it is held that,
if a child has the requisite discretion,
intelligence, and physical ability to be
allowed to be in the streets at all, the
purpose for which it went there is
wholly immaterial. Schierhold 2.
North Beach, etc., R R.Co., 40 Cal.
447; Jetterv. N. Y. & Harlem R. R.
Co., 2 Abb. App. (N. Y.) 458.
Remotensess or Damaae. 103

the swell of a steamer, and a jury gave only a fourth part of the
damage actually sustained, alleging as their reason that the blame
was not attributable to the defendant alone, and that the barge was
not properly trimmed ; the verdict was upheld by the court.! But
it will be observed that in that case the motion was not by the
plaintiff for a new trial on account of the smallness of the damages,
but by the defendant, on the ground that their finding amounted to
a verdict in his favor, which on the authority of the preceding cases
it clearly did not. It appears, too, in the judgments in that case, to
have been assumed by the court that the jury were not strictly justi-
fied in reducing the damages on the ground alleged by them.’

Sec. 72. Plaintiffs conduct judged by apparent necessity for his act.

In applying the doctrine of contributory negligence, it must
always be remembered that the conduct of the complainant must be
judged of as the facts appeared to him, not as they afterward turned
out. Where, through the breaking of a defective rein, the horses
of defendant’s stage coach ran away, and the plaintiff jumped off
and was injured, it was *held that he could recover damages, [#58]
though the coach was not overturned, and he would have

‘ been uninjured if he had sat still. Lord Exrenzoroves said that it
was sufficient that he was placed by the misconduct of the defendant
in such a situation as obliged him to adopt the alternative of a dan-
gerous leap, or to remain at certain peril.’ Buta man is not justified

1 Smith o. Dobson, 3 M. &G. 59.

? See Raisin v. Mitchell, 9C. & P.
613, to which the same remarks will
apply .

3 Jones ». Boyce, 1 Stark. 493. See
per Martin, B., L. R., 1 Ex. 186; and
The Industrie, L. R., 3 A. & EH. 303;
40 L. J. A. 26.

Circumstances may exist under
which a passenger will be justified in
leaving a car while moving slowly.
Thus in Loyd v. Hannibal & St.
Joseph R. R. Co., 53 Mo. 509, where
a train stopped at a station only a
minute, and a passenger about to
alight at the station started to get
out, but being incumbered with bun-
dies and her little child, and meeting
in-coming passengers, was delayed
until her child had alighted and the
train had started, and, while the train

was in motion, she jumped from the
car to the platform and was injured,
it was held that she was not thereby
chargeable with contributive negli-
gence. See, also, Burrows v. Erie R.
R. Co.,3 N.Y. Sup. Ct. 44; Evans-
ville R. R. Co. ». Duncan, 28 Ind.
441. Soifaconductor or other per-
son in charge of a train advises or
directs a passenger to alight while the
car ig in motion. McIntyre v. N. Y.
C. R. R. Co., 87 N. Y¥. 287; Penn. R.
R. Co. 0. McCloskey, 23 Penn. St.
529; Filerv. N. Y. C. R. R. Co., 68
N. Y. 125. But it must of course
be understood that even the advice of
the conductor would not operate as
an excuse for a passenger to jump
from a train while in rapid motion, or
under such circumstances as render
the act clearly imprudent. Ginnon
104 GenerAL Princietes or DAMAGE.

in encountering a great and certain danger, in order to save himself
a comparatively trifling inconvenience. For instance, where a pas-
senger fell out of a train in trying to shut a door which flew open,
and it appeared that there was room in the carriage for him to sit
away from the door, and that the train would have stopped at a
station in a few minutes, it was held that the accident was not the
natural and necessary result of the company’s negligence.’ It would
‘of course have been otherwise if the accident had happened while
he was doing an act which would not have been dangerous, but for
some circumstance which he could not have foreseen.”

Sec. 73. Contributory negligence of plaintiff's servant, or of person in charge
ot a public conveyance.

Where the person who contributes by his negligence to the injury
is not the complainant, but his servant or agent, the former is of
course unable to recover. A gentleman whose drunken coachman
brings about an accident which he might have avoided could not
himself recover. And itis the same where the complainant is abso-
‘lutely under the control of a third person whose negligence contrib-
utes tothe injury. As for instance a baby in its nurse’s arms, or a
‘child under the care of a grown-up person.’ For it is impossible to
separate the acts of two persons who are both governed by a single

oN. Y. & H. R. R. Co., 3 Robt.
(N. ¥.) 25. So, too, where a pas-
senger under a reasonable apprehen-
sion of danger, jumps from a car or
stage-coach while in rapid motion, it
is not held sucha negligent act as will
prevent a recovery. But in order to
excuse the act the danger must appear
to have been imminent, and such as
would create apprehension of injury
in the mind of a reasonable person.
Passengers under the influence of
reasonable fear, induced by sudden,
impending danger, are not expected
to exercise that degree of caution or
prudence which a person would exer-
cise under ordinary circumstances.
Eldridge ». L. I. R. R. Co., 1 Sandf.
(N. Y.) 89; Buel » N. Y. O. R. R.

1 Adams ». L. & Y. Ry. Co., L.
R.,4 C.P. 739; 88 L. J.C. P. 277.
R.

* Gee ». Metropolitan Ry. Co. L.

,8Q. B. 161; 42 L. J. Q. B. 105.

Co., 31 N. Y. 314; Galena, etc, R.
R. Co. v. Yarwood, 17 Ill. 509; Frink
v. Potter, id. 406.

But the mere fact that a passenger
is being carried by the station at
which he desires to stop, or the place
where he wishes to alight, will not
justify him in jumping from the train,
even though the train or conveyance
does not stop at that point; Jefferson-
ville R. R. Co, 0. Hendricks, 26 Ind.
228; nor because the conductor pre-
maturely calls the station; Penn. R.
R. Co. » Aspell, 23 Peun. St. 147;
nor because he is being carried be-
yond it. Ginnon v, N. Y. & Harlem
R. R. Co., 3 Robt. (N. Y.) 25; Mettle-
stadt v. Ninth Ave. R. R. Co., 4 id.
377.

* Waite », N. E. Ry. Co., E. B. &
E. 719; 27 L. J. Q. B. 417; affirmed,
HE. B. & E. 728; 28 L. J. Q. B. 258.
Remoreness of Damage. 105

will. Buta good deal of doubt has arisen as to whether this principle
should be applied in the case of adults who are in a public convey-
ance, which is managed by persons who are not under their control,
or in any sense their servants or agents. In Thorogood v. Bryan,}
where an accident was caused partly by the driver of one omnibus,
but to agreat *extent also by the driver of another, in which [*59 J
the person injured was a passenger, it was held that a pas-
senger in a public conveyance is so far identified with the driver of
that conveyance, that the negligence of the driver is his negligence,
and that he cannot recover where the driver himself or his master
could not have done so. This decision was much commented on in
the notes to Smith’s Leading Cases;* it was treated as shaken by
those comments by Wittiams, J.;° and Dr. Lushington refused to
be bound by it in the case of The Milan.* On the other hand, it
was treated as good law in Armstrong v. Yorkshire and Lanca-
shire Railway Company,’ where it was held that the negligence of

18 C. B. 115.

°1Sim. L. C. 266, 6th ed. ; 300, 7th
ed.; see Wood’s Master and Servant,
pp. 631-2, also Rigby ». Hewitt, 5
Exch. 240; Greenland ». Chaplin,
5 id. 244.

3 Tuff o. Warman, 2 C. B. (N. 8.)
750; 26 L. J.C. P. 265.

431 L. J. Adm. 105.

5L. R., 10 Ex. 47; 44 L. J. Ex. 89.

A similar doctrine has been held in.

this country, but we cannot agree with
the author that this doctrine is either
good sense or good law, as far as it
applies to a person who is riding in
a public conveyance, when he has no
control whatever over the drivers. It
might, with the same propriety, be
held that passengers on a railway car
who were injured by the negligence
of the employees of a train run by an-
other company, could not recover
against such company, if the em-
ployees of the train upon which he
was riding, were guilty of any negli-
gence; yet,in Brown». N. Y., etc, R.
R. Co., 31 Barb. (N. Y.) 385; Mooney
o. H. R.R. Co., 5 Robt. (N. Y. Sup.
Ct.) 548, it was held that a party rid-
ing in a public conveyance injured by
reason of a collision with a vehicle
‘passing along the highway cannot re-
cover of the second vehicle owner,

14

if negligence on the part of the driver
of the conveyance in which he was
riding, contributed to the injury.
See, also, Carlisle » Sheldon, 38 Vt.
440, where, in an action brought by
the wife for an injury sustained while
riding with her husband on the high-
way, it was held that she could
not recover if the negligence of
her husband contributed to the
injury. In Munroe v. Leach, 7 Metc.
(Mass.) 274, in an action by the
owner of a coach and horses against
the driver of another coach, for driv-
ing the wheels of his carriage upon
one of the horses attached to the plain-
tiff’s coach, it was held to be a ques-
tion for the jury whether the plain-
tiff’s driver was guilty of such mis-
conduct as to prevent the plaintiff's
recovery, and that the court cannot
give peremptory instructions that the
plaintiff cannot recover because of the
misconduct of his driver. In Arctic
Ins. Co. v. Austin, 6 T. & C. (N. Y.)
68, in an action for corn lost by a col-
lision, it was held that where the
owner shipped it by a boat over which
he had no control, he could recover
of the owners of another boat by
whose negligence it was lost, although
those in charge of the boat carrying
the corn were also negligent.
106 GenrraL Princreves or Damage.

the driver of a train, in which the plaintiff was a passenger, was a
bar to his suing for the negligence of the defendants in managing
their train. No doubt there was the additional circumstance, that
the plaintiff was the servant of the company whose negligence con-
tributed to the accident, and therefore he could not have sued them
But the decision was rested upon a simple affirmance of the doctrine
laid down in Thorogood v. Bryan, that the plaintiff, for the purpose
of the action, must be taken to be in the same position as the owner
of the conveyance or his driver.

Sec. 74. Principle suggested in support of Thorogood v. Bryan.

It certainly seems to me that the decision in Thorogood v. Bryan
was not only good law but good sense. The principle of the doc-
trine of contributory negligence is, that the defendant, while admit-
ting that he was in fault, denies that he was wholly in fault, and
asserts that the accident was as much the fault of another party as
of himself; that is to say, that his fault would have resulted in no
evil consequence without a fault on the other side. Nowit is evi-
dent that this defense strikes at the whole ground of action. It is
not merely a personal retort which only applies to the individual
who was himself in the wrong. It is just as applicable to any one
who says that the defendant has committed a wrongful act, which
has produced certain harm, for which he should be held answerable.
The plea consists in admitting a wrongful act, but denying that it
produced the harm complained of. For instance *suppose
a railway collision brought about inthis manner. One driver,
A., runs past a signal which is set at danger. He then sees another
train coming to meet him, and reverses his engine and puts on the
brake. B., the driver of the other engine, does nothing whatever,
though he could have stopped his train before both met. If these
facts would be an answer to an action by B. or his company, against
A. or his company, should they not equally be an answer to an
action by any passenger in B.’strain? The passenger would clearly
have an action against B.’s company for breach of contract.

[*60 ]

In Cleveland, etc, R. R. Co. ». who was killed upon the defendant’s
Crawford, 24 Ohio St. 631, it was railroad, were guilty of negligence
held that evidence that some of the that contributed to the accident, was
next of kin of the plaintiff's intestate not admissible.
Remorensss or Damaae. 107

Why should he have an action against A.’s company for negli-
gence ?"

Sec. 76. Where defendant’s negligence is the primary and substantial cause of
injury.

Where, however, the defendant’s negligence is the primary and
substantial cause of the damage sustained by the plaintiff, he will
be responsible for the whole damage, though it may have been
increased by the wrongful conduct of a third person, or though
there may have been negligence on the part of such third person,
which, jointly with the defendant’s negligence, has caused the dam-

age.

1See the remarks of BRAMWELL,
B., at L. R., 10 Ex. 51.

? Collins v, Middle Level Commis-
sioners, L. R.,4C.P. 279; 38 L. J.
C. P. 236; Harrison v, G. N. Ry. Co.,
8H. & C. 231; 33 L. J. Ex. 266. See
Smith vo. Dobson, 3 M. & G. 59.

If the immediate cause of the injury
was the defendant’s negligence, the
plaintiff may recover even though he
was himself in some degree negligent.
The rule may be said to be that,
where the negligence of the defend-
ant is proximate, ‘and that of the
plaintiff remote, an action will be sus-
tained although the plaintiff was not
entirely free from fault. Manly o.
Wilmington, etc., R. R. Co., 74 N.
C. 655 ; Miss. Cent. R. R. Co. v. Mason,
51 Miss. 234; Cleveland, etc., R. R.
Co. v. Elliott, 28 Ohio St. 340; John-
son v. Canal R. R. Co., 27 La. Ann.
58; Driscoll v. Mayor, etc., 18 N. Y.
Sup. Ct. 101. In Illinois, Georgia
and some other States, the rule is held
to be that, where there is some negli-
gence upon both sides, the mere pre-
ponderance of negligence is not the
test, but that, even though the plain-
tiff has been guilty of some negligence,
yet, if i 1s slight as compared with the
defendant's, he may recover, but that
the defendant’s negligence must be
largely in excess of the plaintiff's.
Chicago, etc., R. R. Co. v. Clark, 70
Ill. 276; Hammond ». Mukwa, 40
Wis. 85; Litchfield Coal Co. v. Tay-
lor, 81 Ill. 590. The question as to
whether the defendant’s negligence
was the proximate cause of theinjury
is for the jury. Kansas, etc., R. R.

And similarly, when the defendant’s breach of contract has

Co. v. Brady, 17 Kans. 380; Herrick 0.
Sullivan, 120 Mass, 576; Green o. Erie
R. R. Co., 18 N. ¥. Sup. Ct. 333.
The intoxication of the plaintiff,
which prevents him from taking
proper precaution to avoid the injury,
is such contributive negligence as
excuses the defendant, but it is a
question for the jury whether the
plaintiff's intoxication was such.
Cramer ». Burlington, 42 Iowa, 315;
Ill. Cent. R. R. Co. v. Cragin, 71 Ill.
177; Ditchett 0. Spuyten Duyvil R. R.
Co., 5 Hun (N. Y.), 165. The mere
fact that a person passing along a
public street might possibly have
avoided the injury by extraordinary
care, will not prevent his recovery
from a railroad company whose track
crossed the street, for an injury re-
ceived by the sudden backing of a
train across the street without warn-
ing. In such a case, in order to pre-
vent a recovery, very positive evidence
of negligence, on the plaintiff's part,
is required. McWilliams». Det. C. M.
Co., 31 Mich. 274. The rule may be said
to be that a recovery cannot be had
if the plaintiff’s negligence prowimately
contributed to the injury; Morrissey
v. Wiggin’s Ferry, 43 Mo. 380; Isbell
vo. N. Y., ete., R. R. Co., 27 Conn, 393;
Conlin v. Charleston, 15 Rich. (S. C.)
201; Grant v. Mosley, 29 Ala, 302;
Northern, ete., R. R. Co. o. State, 29
Md. 420; Richmond »v. Sacramenta
etc., R. R. Co., 18 Cal. 851; Newhouse
2. Miller, 35 Ind. 463; Stiles 0. Geesey,
71 Penn. St. 489; but the mere fact
that the plaintiff was guilty of some
negligence ; Bequette ». People’s
‘

108

GENERAL PRINCIPLES oF DAMAGE.

brought about a dangerous state of things which ends in an accident.
The fact that the accident itself was brought about by the negli-
gence of another person, even though that person was the plaintiff

Transp. Co., 2 Oreg. 200; Walsh ».
Mississippi, etc., Trans, Co., 52 Mo.
434; or even that he acted unwisely,
will not prevent a recovery. Macon,
etc., R. R. Co. o, Winn, 26 Ga. 250;
Lindsey v. Danville, 45 Vt. 72. .

Where a blind man, in the day
time, walked off the side of an unob-
structed bridge sixteen feet in width,
which was defective for want of a
rai], and suffered an injury which
-would not have happened but for his
blindness, it was held that the court
will not say, as matter of law, that
his fault contributed to the accident;
but it is for the jury, after consider-
ing his familiarity with the road, his
ability arising from the increased
acuteness, fidelity and power of his
other senses, or otherwise, and all the
circumstances of the case, to say
whether he was guilty of care-
Tessness in attempting to pass the
bridge without a guide. Sleeper v.
Sandown, 52 N. H. 244; Gonzales ».
New York & Harlem R. R. Co., 38 N.
Y. Sup. Ct. 57.

As to the degree of contributory
negligence that prevents a recovery
for an injury received by one while
walking on a railroad track, see
Baltimore, etc., R. R. Co. v. State, 36
Md. 366.

A person cannot recover for an in-
jury received by reason of the negli-
gence of another if his own want of
care directly contributed to the in-
jury; for, where one rushes upon
danger which, by the exercise of ordin-
ary care on his part, he might have
avoided, he cannot complain because
others failed to exercise a higher de-
gree of care than he himself has exer-
cised. But, though he was himself
in a measure negligent, yet if his neg-
ligence is not the proximate cause of
the injury —that is, if the injury
would have happened hail anaes |
ee negligence —he is not preclude

rom a recovery. He must have con-
tributed to the injury. That is, by
his own act, he must have done that
which directly brought it about, and
placed himself or his property in a

position where, except for his co-
operating fault, the injury would not
have been sustained, and this must
be such an act as aman of ordinary
prudence would not have done in
view of all the circumstances. If,
however, the act of the defendant was
the proximate cause of the injury,
and was such as a man of ordinary
prudence would not have anticipated,
the plaintiff cannot be charged with
that degree of contributory negligence
which excuses the negligence of the
defendant, even though the act in
view of the circumstances was, ip a
measure, careless or negligent. Lind-
sey v. Danville, 45 Vt. 72; Hackett v.
Middlesex Manuf. Co., 101 Mass. 101;
Newhouse v. Miller, 35 Ind. 463; R.
R. Co. v, Pindar, 53 Ill. 447; Stiles 2.
Geesey, 71 Penn. St. 439; Devitt o.
R. R. Co., 50 Mo. 302; Haight v, R.
R. Co., 7 Lans. (N. Y.) 11. The rule
is that where the plaintiff might, by
the exercise of proper care, have
avoided the injury no recovery can
be had whether or not the plaintiff
contributed tu the mischief that hap-
pened by want of ordinary caution is
a question of degree. If the danger
was so great that no sensible man
would have incurred it, the verdict
must be for the defendant. * *

The whole question was whether the
danger was so obvious that the plain-
tiff could not, with common, prudence,
have done what he did.” State o. R.
R. Co., 52 N H. 528; Blakeley v. Le
Duc, 19 Minn. 187; Robinson v, Cone,
22 Vt. 213; Kennard v. Burton, 25
Me. 49; Wheelock v. Boston & Albany
R. R. Co. 105 Mass. 203; Ince v.
Ferry Co., 106 id. 149; Culbreth v. R.
R. Co., 3 Houst. (Del.) 392; Moore v.
R. R. Co, 24 N. J. L. 284; Kahn
v. Love, 3 Oregon, 206; R. R. Co. v.
Haslan, 38 N.J. 147; Van Schaick v.
R. R.Co., 43 N. Y. 527; Canal Co. v.
Bentley, 66 Penn. St. 30; Fleytas v. R.
R. Co., 18 La. 389; R. R. Co. ».
Goddard, 25 Ind. 185. The rule is
that the negligence must be a proxi-
mate and not a remote cause of the in-
jury. Morrissey v. Ferry Co., 43 Mo.
*
‘ Remoteness or Damage.

or his servant, will be no answer to the action.

109

For without the

breach of contract the negligence would have led to no harm. Ac-

cordingly, where the defendants

380; Isbell v. N. Y., etce., R. R. Co.,
27 Conn. 393; Richmond v. Sacra-
mento R. R. Co., 18 Cal. 351; North-
ern, etc., R. R. Co. v. State, 29 Md.
420; Grant v. Moseley, 29 Ala. 302.
Mere want of care on his part will not
debar a recovery. Whirley v. White-
man, 1 Head (Tenn.), 610; Fraler v.
Sears, etc., Co., 12 Cal. 555; Bequette
v. People’s Trans. Co., 2 Oregon, 200;
R. R. Co. v. Collins, 2 Duv. (Ky.) 114.
He is not bound to exercise the utmost
possible caution. Eakin v. Brown, 1
E.D.S.(N.Y.C. P.) 36; McKeon
o. Citizens’ R. R. Co., 42 Mo. 79.
Nor will the fact that he acted un-
wisely. R.R. Co. v. Winn, 26 Ga.
250; or that he was, at the time
the injury was received, trespassing
upon the premises of the’ defendant, if
his trespass does not involve negli-
gence, contributing substantially to
the injury, defeat a recovery. Norris
o. Litchfield, 35 N. H. 271; Daley o.
Norwich, etc., R. R. Co., 26 Conn. 591;
Brown v. Lynn, 31 Penn. St. 513. In
order to excuse liability the act of the
plaintiff must have been such as a
prudent man would not have done
under the same or similar circumstan-
ces. The injury must have been the
result of the combined negligence of
both parties. Brown ». Illius, 27 Conn.
84; Jenks ». Wilbraham, 11 Gray
(Mass.), 142; Macon R. R. Co.o. Winn,
19 Ga 440. In one case the defend-
ant having borrowed a gun of the
plaintiff, returned it heavily loaded,
purposely to have the plaintiff kicked
over by its discharge. The plaintiff,
having ascertained this fact, neverthe-
less discharged the gun, and it was
held that the act of the borrower, un-
der these circumstances, was not the
proximate cause of the injury. Smith
». Thomas, 23 Ind. 69; S. P., In
Winship o. ’ Enfield, 42 N. H. 197. it
was held that no recovery could be
had for an injury received by reason
of defects in a highway if it appeared
that the vices of the horse or defects
in the carriage contributed to the in-
jury, unless the plaintiff shew that

had contracted to supply gas fit-

he was not aware of such vices or de-
fects, and was in no fault in not know-
ing them. Folsom ». Underhill, 36
Vt. 580; S. P., Glidden v. Reading, 38
id. 52. Where the plaintiff sued the
defendants for damages received by
falling from the platform of their
horsecar, it was held that, even though
the plaintiff contributed to the injury
by a degree of carelessness and negli-
gence, yet, if the car was stopped and
afterward started up by the driver,
negligently and recklessly, or unskill-
fully, when but for such starting the
injury would not have happened, a‘

_Tecovery might be had. McKeon o.

Citizens’ R. R. Co., ante; 8S. P.,
Thomas ». Kenyon, i, Daly (N. ¥y.¢.
P.), 182; and, generally, it may be said
that, unless the plaintiff’s acts were
such as, under the circumstances, a
prudent man would not have done,
and were such that except for his act
the injury would not have happened,
a recovery may be had, notwithstand-
ing that he was ghilty of some negli-
gence. Phelps». Wait, 30N. Y. 78;
RB. R. Co. v.- Elliott, 4 Ohio St. 74:
Morris v. Phelps, 2 Hilt. (N Y.) 38;
Mettlestadt ». Ninth Av. R. R. Co.,
4 Robt. (N. Y.) 377; McDonnell v.
Buffum, 31 How. Pr. (N. Y.) 154;
Whittaker o. West Boylston, 97 Mass.
273; Clark v. Highth Av. R.R. Co.,
32 Barb. (N. Y.) 657; Walker v. West-
field, 39 Vt. 246; and the question is
one of fact for the jury in view of all
the circumstances. Spooner v. Brook-
lyn, etc., R. R. Co., 54 N. Y. 230;
Morgan v. Crocker, 8T. &C. (N. Y.)
801; Lewis o. R. R. Co., 38 Md.
588; Sawyer v. Sauer, 10 Kans. 466;
Pacific R. R. Co. o. Houts, 12 id. 328;
Delaney v. R. R. Co., 33 Wis, 67;
Mayor v. Holmes, 39 Ma. 243; Gagg
». Vetter, 41 Ind. 228; except in cases
where there is no dispute as to the
facts. Patten 0. R. R. Co., 32 Wis.
525; when the court may pass upon it
asa matter of law. Frech 2. Phila.
R. BR. Co., 39 Md. 574; R. R. Co.o.
Boteler, 38 id. 568.
110 GenEeRAL Princrptes or Damage.

tings in the plaintiff's house, and the fittings were so defective that
the gas escaped, and a servant negligently brought in a lighted
candle, on which an explosion took place; it was held that the
defendants were liable, whether the person who introduced the
candle was the plaintiff’s servant or not.’

Sec. 76. Damage resulting from plaintiff's premature act.

The last instance that I shall give of damage caused by the plain-
tiff’s own act is to be found in cases where he has incurred premature
expense, in reliance upon the defendant’s performing his contract.
This subject will be noticed again *in treating of sales of land.
One illustration will be sufficient at present. It was an action on

a covenant of the 17th September, to demise a ferry, and to make a
- good title within fourteen days from the date of theagreement. The
plaintiff was to pay 3,1502. on the 29th November, if title could be
made out. No title could be established. The plaintiff was pro-
moter of a company provisionally registered for the purpose of
working the ferry. It was held that no damages could be given for
the expense of raising the 38,150/., nor the loss of interest upon it,
nor for the costs of preparing the company’s deed of settlement, and
‘procuring provisional registration, because these were damages
incurred by the plaintiff’s own imprudence in beginning to act be-
fore he had ascertained whether the plaintiff could or could not com-

[*61 ]

plete his contract.’

Sec. 77. Damage too remote when the wrongful act of a third party. Vicars
v. Wilcocks.

Another case in which damage will be too remote arises where it

is the wrongful act of a third party, such as could not naturally be

contemplated as likely to spring from the defendant’s conduct. A

1 Burrows ». March Gas Co., L. R.,
5 Ex. 67; 89 L. J. Ex. 33; affirmed,
L. R., 7 Ex. 96; 41 L. J. Ex. 46,

2 Hanslip v. Padwick, 5 Ex. 685.

3 A simple illustration of this rule
will be found in the case put by Jamas,
L. J., of the bailee of a key carelessly
allowing it to fall into the possession
of a man whocommitsaburglary, and
by means of the key opens a box
containing valuable property. Re
‘United Service Co., Johnston’s Claim,

L. R., 6 Ch. 218; 40 L. J. Ch. 288.
Other recent illustrations will be
found in Blagrave ». Bristol Water
Works Co.,1 H. & N. 369; 26 L. J.
Ex. 57; Cahill v. Dawson, 3 C. B. (N.
8.) 106; 26 L. J. C. P. 253; Collins
v. Cave, 4H. & N. 225; 28 L. J. Ex.
204; affirmed in Ex. Ch., 6H. &N.
181; 30 L. J. Ex. 55; Sully v. Du-
panty 3 H. & C. 270; 838 L. J. Ex,
Remotenrss or Damage. 111

wider doctrine than this was formerly maintained, viz., that where
the act of the defendant caused a wrongful act of another, for
which the plaintiff would have a right to sue such last-named party,
he could not have a right of action against the original wrong-doer
also. This doctrine rested upon the case of Vicars v. Wilcocks,'
and a dictum of Lord Expon’s in Morris v. Langdale.’ Carried to
this extent, however, it was much shaken by Mr. Starkie in his
work on Libel and Slander,’ and by the court of exchequer in Green
v. Button,‘ and is now finally overruled by the case of Lumley v.
Gye.’ That was an action by the *manager of a theatre
against the manager of a rival house for inducing a singer to
break her engagement with him. Of course he had a remedy
against the singer herself upon her agreement, and an attempt was
made to frustrate the action by means of the doctrine above alluded
to. The court of queen’s bench, however, decided against it, and
stated the true import of the case of Vicars v. Wilcocks, in accord-
ance with the explanation previously given by Mr. Smith.° The
facts of that much discussed case were as follows: The defendant,
in conversation with various persons, but not with either A or B,
accused the plaintiff of maliciously cutting his cord. This charge
was repeated both to A and B. The plaintiff was, at the time, in
the service of A, who, in consequence of what he heard, wrongfully
dismissed the plaintiff before his time was out. He then applied
to B for employment, who refused, both on account of what he had
heard, and because his former master had discharged him for the
offense imputed to him. Upon this evidence the plaintiff was non-
suited. A rule to set aside the nonsuit was refused. Lord Exien-
BoRouGH said that the special damage must be the legal and natural
consequence of the words spoken, otherwise it did not sustain the
declaration. And here it was an illegal consequence; a mere
wrongful act of the master, for which the defendant was no more
answerable than if, in consequence of the words, other persons had
afterward assembled and seized the plaintiff and thrown him into a
horse-pond, by way of punishment for his supposed transgression.
As to the second point, it was plain that B’s refusal to employ the

[ *62 ]

32 Sm. L. C. 584, 7thed. *20.M. &R. 707.
284. 52H. GB. 216; 22 L. J. Q. B. 463,
3d ed. 326. 62 Sm. L. C. 543, 7th ed.
112 GeneRaL Principies or Damage. «

plaintiff proceeded rather from his dismissal by A, than from the
defendant’s words. It is evident that this case may well stand upon
two grounds: Firstly —That the dismissal of the plaintiff by A
was not the natural or necessary consequence of the defendant’s
language, but a mere act of spontaneous caprice. Secondly—That
the result did not, in fact, spring from the defendant’s having used
the words, but from the repetition by those who heard them.’

Sec. 78. Liability of person who utters a slander for its repetition.
*The latter ground raises a question which has been much

D*OoT ges

discussed, whether a person who utters a slander can ever be
liable for the results which follow, not from what he has said, but
from the repetition by another of what he hassaid. In other words,
whether such a repetition is such a natural and necessary conse-
quence of the original slander, as to make the slanderer liable for
any evil that may ensue upon it.

It is clear that he will be so liable if he has himself authorized or
suggested the repetition of the statement. As, for instance, where
the defendant orally communicated to a newspaper reporter a defam-
atory story respecting the plaintiff, which he said would make a
good case for a newspaper. And so where certain poor-law guard-
ians, while discussing a case which was before them, said that they
were glad to see reporters present, and hoped that they would take
notice of the case.” He will also be liable if he utters the slander
before a person whose official position in respect to the person slan-
dered renders it his duty to report upon the charges made, and to
have them inquired into.’ In either of these cases, any result that
follows must or ought to have been contemplated by the originators
of the libel. It is like the case of the man who threw the squib
into a crowd, of whom one after the other, in self-defense, threw it
off themselves till it lit upon and injured the plaintiff... But it is

1 See further the criticisms upon this
case in Lynch v. Knight, 9 H. of L.
Ca. 577; 2 Smith’s L. C., 7th ed., 539.
Lord WENSLEYDALE, alluding to the
absurd case put by Lord ELLENBOR-
oven of the plaintiff being thrown
into a horse-pond, said that he could
conceive circumstances under which
that might be the natural result of an

accusation of the plaintiff made to an
excited mob.

* Adams v. Kelly, Ry. & Mood. 157;
Parkes ». Prescott, L. R., 4 Ex. 169;
38 L. J. Ex. 105.

3 Kendillon v. Maltby, 1 C. & Mas.
493; Derry v. Handley, 16 L. T. (N.
8. ) 263.

Scott v. Shepherd, 2 W. & BL
892; 1 Sm. L. C. 477, 7th ed.
Remorenrss or Damage. 1138

different where the repetition of the words is the independent act
of the hearer, who was neither incited nor bound to pass them on.
In such a case it has been held, in the well-known case of Ward v.
Weeks, that the injury which follows from the repetition is too
remote to be a ground of damage. Such a spontaneous and unau-
thorized communication cannot, it is said, be considered the neces-
sary consequence of the original uttering of the words. It is the
voluntary act of a free agent, over whom the defendant had no con-
trol, and for whose acts he was not answerable, that was the imme-
diate cause of the plaintiffs damage.

Sec. 79. Voluntary repetition of slander.

*An attempt was made to bring a case within the author- [*64 J
ity of Kendillon v. Maltby, under the following circumstan-
ces. The defendant in presence of the plaintifi’s wife uttered abuse
of her, accusing her of unchastity. The wife repeated this to her
husband, and he in consequence left her. She then sued for the
slander, charging the husband’s leaving her as special damage. The
husband was joined as first plaintiff for conformity. It was con-
tended that it was her duty as wife to repeat the charges against
her to her husband. The court held that- there was no such duty,
but that it was a‘mere voluntary act, for which, on the authority of
Ward v. Weeks, the defendant could not be held responsible
Wuopsz, B., said, “If moral obligations or considerations of duty to
repeat slanders are to be the tests, if such are to be substituted for
the authority by the utterer to repeat his words, necessary to render
him liable, the question of liability will be involved in inextricable
confusion, and it will be difficult to say where the action of slander
will stop.” ?

I do not imagine that by these words Wixps, B., meant to throw
any discredit on the doctrine of Kendillon v. Maltby, but merely to
intimate that the duty to repeat a slander must be clearly made out,
and not rested on sentimental considerations of honor or morality.
The question is, when a person utters an accusation, is he bound to
suppose it will be repeated? He is bound to suppose it, when he

! Per Trnpat, OC. J., Ward v, Weeks, 2 Parkins v. Scott, 1 H. & C. 153;

% Bingh. 211; Holwood ». Hopkins, 311. J. Ex. 331.
Cro. Eliz, 787.

15
114 GernERAL Princretes or DAMAGE. §,

suggests its repetition, or makes it to a person whose clear official
duty it is to take action upon the statement ; otherwise not. In the
case of Parkins v. Scott, it is plain that the last person who could
have been expected to repeat the scandal was the wife, and the last
person to whom she could have been expected to repeat it was her
husband.

Sec. 80. Riding v. Smith.

.The recent case of Riding v. Smith’ seems, at first sight,
hardly reconcilable with the dicta in Ward v. Weeks. There
the plaintiff was a grocer and draper, who was assisted in his
business by his wife. The incumbent of the parish was about
to read himself in, and on the way to the church the defendant,
in presence of three or more persons, used words imputing to
*the plaintiff’s wife the commission of adultery with the in-
cumbent on the plaintiff's premises. The declaration con-
tained three counts. The first charged the words as being an injury
to the plaintiff's credit. The second as being an injury to the wife’s
credit. The third as being an injury to the plaintiff’s trade. The
last count alone was brought by the husband in his own right. In
the two former husband and wife joined. At the trial the first two
counts were struck out. “The action then remained in substance
not slander, but an action by the plaintiff, a trader, carrying on
business, founded on an act done by the defendant, which led to loss
of trade and customers by the plaintiff.”* No evidence was given
that any of the persons who heard the statement had ceased to deal
with the plaintiff, or that any particular persons had ceased to deal
with him, but it was shown that a general falling off of his busi-
ness had taken place, for which the plaintiff was unable to account,
except as a consequence of the statement. The plaintiff got a ver-
dict for 40s., which was upheld by the court. It was admitted that
the first two counts, being for slander of the wife, could not be
maintained without proof of special damage, which would have to
be established by showing that particular persons had ceased to deal
with the plaintiff. But it was held that no such evidence was neces-
sary where the statement was one calculated to injure a shopkeeper,
in his trade, whether such statement was in itself defamatory, or

[#65]

11 Ex, D. 91; 45 L. J. Ex, 281. ? Per Keuy, C. B., 1 Ex. D, 93,
Remotenrss or Damaae. 115

was merely the assertion of a fact, such as that one of his shopmen
was suffering from scarlet fever, which would operate to prevent
people coming to the shop. So far all was clear enough. But the
difficulty upon the authority of Ward v. Weeks arose in this way.
It did not appear that the persons who heard the statement ever
had been, or ceased to be, customers of the plaintiff. Any injury
that he suffered must, therefore, either have arisen from some other
cause, or from their unauthorized repetition of what they had heard,
and it was argued that for this the defendant could not be answer.
able. Pottock and Huppizston, BB., expressly maintained the
decision in Ward v. Weeks. The former appeared to distinguish
it on the ground that in the case before them the loss was the
*natural result of the words uttered, while in Ward v. Weeks
it was notso. But the dictum in Ward v. Weeks seems to
go the full length of holding that loss can never be the natural re-
sult of words uttered, where it had been caused, not by their being
spoken, but by their being repeated. Perhaps the distinction may be
that pointed out by Martin, B.,in Dixon v. Smith,’ viz., that where
the action is not maintainable without proof of special damage, there
the suit is really brought for the special damage, which is the gist
and essence of the action. Therefore, the plaintiff must fail, unless
he can prove that the particular damage of which he complains was
caused by the defendant. This he cannot do, merely by showing
that the defendant said something, which somebody else wantonly
repeated. But where the words are actionable without special dam-
age, then the defendant’s liability exists antecedent to any repetition ;
and proof of the damages which followed upon such repetition is
merely a mode of assessing a penalty which has been already in-
curred. On the other hand, if the dictum in Ward v. Weeks is
sustained to its full extent, it is difficult to see why a man should be
responsible for the consequences following from the repetition of
his words, when those consequences are used as measuring the dam-
ages arising from his wrongful act, though he would not be respon-
sible for the very same consequences, if they are used for thepur-
pose of making his act wrongful. In other words, the principle is,
that a man is only responsible for the natural consequence of his
own acts. Where words spoken are not actionable without special

[*66]

15H. & N. 450; 29 L. J. Hx. 125.
116 GENERAL Princietes oF Damage.

damage, and the only special damage has arisen from their repetition,
it is held that the repetition is not a natural consequence of the
speaking of the words. Where the words are actionable without
special damage, is not the repetition of them equally a non-natural
consequence of the speaking? and if so, why should the defendant
be liable to pay for what, ex Aypothesi, he had no right to expect ?

Sec. 81. Ward v. Weeks, doybtéd by Kelly, C. B.

In Riding v. Smith, Kexiy, C. B., took a different line from
his learned colleagues. He said,! “I hope the day will come
when the principle of Ward v. Weeks, and that class of cases, shall
be brought under the consideration of the court of last *re-
sort, for the purpose of determining whether a man who
utters a slander in the presence of others is not responsible for all
the natural effects which will arise from those persons going about
and repeating the slander though without any express authority on
his part.” Certainly, if that is natural which is in conformity with
human nature, every one who utters a slander may be perfectly
sure that it will be repeated. If he wishes to make the repetition
certain, he has only to impose a pledge of secrecy on his hearers.

[*67]

Sec, 82. Cases where wrong to A is an injury to B.

Questions as to remoteness of damage arise in another class of
cases, which present some analogy to those just discussed. I refer
to those cases in which a wrong done to one person affects another
who was not a party to the original transaction. If A breaks his
contract with B, or inflicts some harm on B, the result may be most
‘hurtful to C. But C cannot in general sue A. Not in the former
case, because he was not privy to the contract.? Not in the latter
case, because, although he may have suffered the damnwm, it was
B who suffered the injurza.

Sec. 83. Fraudulent representations acted on by others.

But there is another class of cases, of which Langridge v. Levy *
was the first, where a person commits a fraudulent act, with the in-

11 Ex. D. 94. See the cases collected, 2 Sm. L. CO.
2 See Dickson ». Reuter’s Telegraph 91, 7th ed. The principle established
Co.; 2 C. P. D. 62; 46 L. J. O. P. in Langridge v. Levy has been carried
197. still farther in a New York case;
32M. & W. 519; 4 M. & W. 387. Thomas v. Winchester, 6 N. Y. 397;
REMoTENESS OF Damage.

tention of influencing the conduct of others.
is the case of fraudulent representations.
has recently been laid down as follows :

and we are not aware that the doctrine
of this case hadever been controverted.
In that case it was held that where a
person negligently sells a poisonous
drug, dangerous to life, for a harm-
less one, he is liable to any person
who sustains injury therefrom, upon
the ground, not that the injury vested
in contemplation,. but that it resulted
from a violation of a duty to the pub-
lic, which requires the exercise of the
highest care on the part of the per-
sons vending articles that, ,in their
ordinary use, endanger human life.
In that case the doctrine was broadly
asserted that a dealer in drugs, who
carelessly labels a deadly poison as
being a harmless drug of a different
kind and name from that which in
fact it is, is liable to all who, without
fault on their own part, are injured
by using it, in consequence of the
false label. In such acase the liabil-
ity does not rest upon any contract or
direct privity between the vendor and
the person using the drug, but out of
a public duty, which imposes upon
every person to avoid acts in their
nature dangerous.

The distinction between the doc-
trine of this case and that of Langridge
v, Levy is quite marked. In the latter,
the article itself and by itself was not
dangerous. It was only the use in
connection with other agencies, as
gunpowder, etc., that made it so, and
the sale of it was not unlawful; there-
fore, however much fraud was prac-
ticed by the seller, he could not be
made liable for injuries resulting from
it, except such as were fairly within
his contemplation at the time of sale
and to such persons as he had notice
would use the article. Thus, if A
sells B a horse, and falsely warrants
it to be kind and steady, to be used in
a livery, to let for hire, when, in fact, it
is a vicious and unmanageable animal,
he would be liable to B for all damage
sustained by him from injuries result-
ing from the viciousness of the horse,
but he would not be liable to a per-
son who hired the horse of .B for in-
juries resulting to him from its vic-
jousness, although he knew and was

117

A common instance
The law in such cases
“ First, every man must

informed that it was to be let for hire.
So, if a blacksmith shoes a horse de-
fectively, in consequence of which he
falls and injures a person who is
riding it, having procured it from the
owner for that purpose, the blacksmith
cannot be held chargeable in damages
for the injury, for there is no privity
between him and the person injured,
and he owed him no duty in respect
to the shoeing of the horse, public or
private. But in all cases where the
act itself is unlawful, the defendant is
liable to any person sustaining injury
therefrom, as a natural and necessary
result of the act. No privity is nec-
essary in such a case except such as
grows out of the unlawful act. Myers
v. Malcolm, 6 Hill (N. Y.); 292; Van-
denburgh v. Truax, 4 Den. (N. Y.)
464; Underwood v. Stuyvesant, 19
Johns. (N. Y.) 181. But in order to
predicate liability, the injury must
grow out of the ordinary use of the
article, in the ordinary way, and for
ordinary purposes, or a use of which
the vendor had notice, so that the in-
jury can be said to be the natural or
necessary consequence of the wrong.
If the article itself is not dangerous,
and only becomes so by a particular use
to which it is not ordinarily devoted,
orin the case of a drug or chemical, by
being mixed with other substances
with which it is not ordinarily used,
and of which use the vendor has no
notice, no liability can arise against
the vendor for any fraud practiced by
him or for any negligence by which
he delivers a different article from
that intended, except to the purchaser
himself. The rule is that, for an in-
jury resulting from a breach of con-
tract merely, no action, whether ex
contractu or ex delicto, can be main-
tained, except by those who are privy
thereto. But when the injury results
from the breach of a public duty, any
person injured may maintain an action
therefor. .Davidson v. Nichols eal,
11 Allen (Mass.), 517; Longmeid v,
Halliday, 6 Exch. 761; Thomas »,
Winchester, 6 N. Y. 397; Lasser a.
Clute, 53 id. 169; Loop v. Litchfield,
42 id. 351.
118 GENERAL Prices oF DAMAGE.

be held responsible for the consequences of a false representation
made by him to another, upon which that other acts, and, so acting,
is injured or damnified; secondly, every man must be held responsi-
ble for the consequences of a false representation made by him to
another, upon which a third person acts, and, so acting, is injured
or damnified, provided it appear that such false representation was
made with-the intent that it should be acted upon by such third per-
son, in the manner that occasions the injury or loss. But, thirdly,
to bring it within the second principle, the injury must be the im-
mediate and not the remote consequence of the representation thus
made.” !

Sec. 84. Fraudulent representation acted on in a- way not intended.

Hence, if such false *representation is made in order to
influence others to act in one particular way, the maker of
it cannot be answerable if they act upon it in quite a different way.
For instance, the prospectus of an intended company is issued in
order to invite persons to accept allotments of shares. If it con-
tains fraudulent statements, any allottee or original shareholder, who
has been defrauded by it, has a right of action against those who
issued the prospectus. But, as soon as the shares are allotted, the
object of the prospectus is over. If persons who have read it, and
conceived a high opinion of the company in consequence, go into
the market and buy shares, they cannot hold those liable who sent
forth the prospectus. In other words, it suggested to the public to
do one thing, and the persons who complain of it have done
another.”

[ *68 ]

1 Barry v. Croskey, 2 Jo. & H. 1, 23; Co., 104 Mass, 64. See ante, p. 89,
approved by Lord Cairns, L. R., 6 H. 7. for statement of case.
L. 412. See New Sombrero Phos- *Peck v. Gumey, L.R., 6 H. L.
hate Co..v. Erlanger, 5 Ch. D. 73; 377, 410.
ellington v. Downer Kerosene Oil
Costs or Former Action. 119

CHAPTER V.

COSTS OF FORMER ACTION. °

Szc. 85. When costs of former actions are recoverable.

86. Decision of the original court final.
87. An actual decision is necessary.
88. Reason for rule. Former costs too remote.
89. When costs as between attorney and client may be allowed.
90. Costs not allowed when action for collaternl purpose.
91. Nor when he had no real defense,
92. Costs of depending action, where liability is undefined.
93. New practice for settling liability as to all parties interested.
94, False assertion of authority by agent. Damages include costs.
95. What false statement is actionable.
96. Case of defendant’s conduct exposing plaintiff to injunction.
97. Tenant holding over.
98. Case of warranty and re-sale.
99. Costs allowable when defense sanctioned.

100. But not when action brought for plaintiff's own wrong.

101. Costs of action against two.

Sec, 85. When costs of former actions are recoverable.

It frequently happens that one person is forced to incur expense
in legal proceedings in consequence of a breach of contract, or tor-
tious act of another. Itis often a matter of considerable nicety to
know whether costs so incurred can be recovered as damages against
the offending party. The solution of the question depends upon
the rules laid down above as to remoteness of the damage; but I
have preferred, for greater clearness, to discuss the subject sepa-
rately.

Sec. 86. Decision of the original court final.

In the first place, it isa general principle that the right to costs
must always be considered as finally settled in the court where the
question is adjudicated on, to which that right is accessory; so that,
if any costs are awarded, nothing beyond the sum taxed, according
to the rules of the court, can be recovered as damages ; or if costs
were expressly withheld by an adjudication in the particular case,
120 GENERAL Pruincretes or Damaae.

none would ve recoverable by suit in any other court.! Accordingly,
where A filed a bill for specific performance, to compel B to carry out
a contract for the sale of land to him, and the bill was dismissed with-
out costs according to the practice in chancery, because B could not
make outa good title, it was ruled that these costs could not be recov-
[*69] ered as damages for breach of *contract in an action by A

against B.? And similarly, where a judgment was set aside for
irregularity, but without costs, and the plaintiff afterward brought
an action for seizing his goods under the judgment, he was not
allowed to recover as special damages the costs of setting it aside.’

Sec. 87. An actual decision is necessary.

But for this purpose it is necessary that there should be an actual
adjudication against the plaintiffs right to costs. A, having been
illegally arrested on mesne: process, applied to the court for his dis-
charge. The rule was referred to a judge at chambers, who ordered
him to be released, and would have given him the costs of the rule,
if he had undertaken not to bring an action. On his refusal no
order was made as to costs. He then brought an action of false
imprisonment, and it was held that he was entitled to recover those
costs as special damage. The case was distinguished from the last
cited ; for there the order had been made absolute without costs;
here, the judge had made no adjudication upon the point.‘

Sec. 88. Reason for rule. Former costs too remote.

The reason of this rule appears to be that costs are, in theory,
supposed to,be a compensation for the expenses justly and properly
incurred in the action. Therefore any costs incurred beyond those
allowed must be assumed to have been unnecessary ; and where costs
have been refused, it must be assumed that they were refused on
account of some fault in the party to whom they were denied; in
either case they would be too remote to be a ground of damage

1 Hathaway v. Barrow, 1 Campb. ? Malen v. Fyson, 11 Q. B. 292.

151; Sinclair 0. Eldred, 4 Taunt. 7; = Loton 0. Devereux, 3 B. & Ad.
Jenkins v. Biddulph, 4 Bing. 160; 3848.
Grace v. Morgan, 2 Bing. N. C. 534; —* Pritchet ». Boevey, 10. & M. 775.
overruling Sandback » Thomas, 1 A plaintiff obtaining a verdict in pro-
Stark. 306; Doe ». Hare, 2 Dowl. 245; hibition, cannot recover the costs of
Symonds ». Page, 1 C. & J. 29; Doe the proceedings in the court below as
». Filliter, 18 M. & W. 47, 49; over- damages under 1 Will. 4, c. 21, s. 1.
ruling Gould v, Barratt, 2 M. & Rob. White o. Steele, 12 OC. B. (N. 8.)
171, 413 note; 82L. J. C.P. 1.
Costs or Former Action. 121

against a third person. Accordingly, they were refused under the
following circumstances: The plaintiff deposited railway shares with
a bank, which left the full control over its securities to their man-
ager. He sold the shares and forged the plaintiff's name to the
transfer deed. On discovering this fraud the plaintiff filed a bill
against the transferee'and the railway company for a cancelment of
the transfer, and for the issue of new certificates. He succeeded in
his suit, but he was refused costs, the court being of opinion that
he had conduced to the result by his own *negligence. He [*70]
then sued the bank for these costs. The court held that the
failure to recover those costs, or any ascertainable or separable portion
of them, could not be said to have followed naturally or directly as a
consequence of the neglect of the company. Lord Justice Jamzs
seems to have put this on two grounds. First, that although the
bank might have been negligent in the mode of keeping their secu-
rities, and therefore would have been liable for the costs of an action
of detinue brought to recover them, if lost, this negligence was not
the proximate cause of the plaintifi’s loss. The real cause was the
manager’s forgery. “Suppose the bailee of a key carelessly aliowed
the key to fall into the possession of a man who committed a bur-
glary, and by means of that key opened a box which contained val-
uable property. It is scarcely possible to hold that the negli-
gence of the bailée with regard to the key would be followed by
responsibility for the loss of every article obtained by the burglar
through the instrumentality of the key.” But, secondly, and this
was, of course, conclusive, he pointed out that one of the reasons why
the plaintiff had been refused his costs in the equity suit was, that
he himself had unconsciously helped the manager to commit the
fraud; the costs, therefore, were not the result of the bank’s negli-
gence, but in a much nearer degree of his own. .

Sec. 89. When costs as between attorney and client may be allowed.

There seem to be two exceptions to the rule that full costs, as
between attorney and client, cannot be allowed as damages. The
first is rather an apparent than a real exception. It relates to cases
where costs could not be taxed; for instance, where judgment ob-
tained by the defendant had been reversed in error, in which case a

1Re United Service Co., L. R., 6 Ch. 212; 40 L.-J. Ch. 286,
16
122 General Princretes oF DamaceE.

Court of Error could not award costs... And so where judgment
had gone by default in the old action of ejectment, when it was nat
the practice for the officers to tax against the casual ejector.’ The
other exception is where the plaintiff has a right to an indemnity ;
there it has been laid down by Lord Trnturpen, “that he is not
indemnified unless he receives the amount of the costs paid by him
to his own attorney.” * This distinction seems to be a just one:
[* TL] *where the obligation to repay costs is thrown by the law

upon a party against his will, it is fair that he should only
repay those costs which the law has itself allowed; but where he has
expressly undertaken to save harmless, every expense, whether taxed
or not, may be justly recoverable.“ It must be stated, however,
that Smith v. Compton was not a case of express, but of implied
indemnity, arising out of a covenant for good title to convey: the
plaintiff had defended an action brought against him by a party
with superior title. It may be a question whether, upon the facts
of the particular case, the same decision would be arrived at, again.

Sec. 90. Costs not allowed when action for collateral purposes.

Costs of maintaining a former action will, of course, never be
recoverable, where the plaintiff might have obtained full satisfaction
for the wrong done him without entering upon the suit, and where
the costs were incurred for some merely collateral purpose. Hence

from lands which he holds under a

1 Nowell 0, Roake, 7B. & C. 404.
covenant of warranty, he may, in addi-

Now the Court of Appeal can award

costs, and they usually follow the
event. Ord. 58, R. 5; L.R., 1 Ch.
D. 41.

2? Doe v. Huddart, 2 C. M. & R.
316.

3 Smith ». Compton, 3 B. & Ad. 407.
A vendee under a general warranty of
title is entitled to recover from the
vendor attorney’s fees and other neces-
sary expenses incurred in defending
his title. Rowe v. Heath, 23 Tex.
614. In Keelerv. Wood, 30 Vt. 242,
it was held that in addition to the
value of the land a vendee upon evic-
tion was entitled to recover his costs
and necessary expenses, including
counsel fees, and in Smith v. Sprague,
40 Vt. 48, a similar doctrine was held.
See Landa v. Obert, 45 Tex. 539; and
generally when a person is evicted

tion to the price paid and interest
thereon, recover all the expenses rea-
sonably incurred by him in defense of
his title. Hale ». New Orleans, 18
La. Ann. 321; Cadyo. Allen, 22 Barb.
(N. Y. ) 888; Marshall v, Betner, 17
Ala. 832; Allen v. Blunt, 2 W. & M.
(U. 8.) 121; Lee». Dean, 3 Whart.
(Penn.) 316; Jackson v. Holliday, 3
T. B. Monr. (Ky.) 363; Wheeler o.
Styles, 28 Tex. 240; Hall ». York,
22 id. 641; Roberts ». Heim, 27 Ala.
678; Gibbs v. Jemison, 12 Ala. 820;
Foly v. McKeegan, 4 Iowa, 1; McGary v,

Hastings, 39 Cal. 360; 2 Am. Rep.

456.
4 Sparks ». Martindale, 8 East, 593,
re Lloyd ». Mostyn, 2 Dowl. (N. &.)
76.
4
Costs or Former AcTIoN. 123

where the plaintiff, in an action against the vendor of land, for not
carrying out his contract, claimed as damages the extra costs of a
bill for specific performance, Tuvpat, C. J., said, “the extra costs
in chancery are not a damage which is a necessary consequence of
the breach of this contract. The filing a bill for a specific perform-
ance is one degree removed from a consequence of the contract,
and the plaintiff must take the consequence of the suit as in other
cases.” * So in an action of trespass for taking goods under a war-
rant of attorney and judgment, which were afterward set aside as
illegal, the costs of setting aside the judgment were not allowed.’
- This rule, and its limitation, were well explained in a later case.
The plaintiff had been committed to prison for manslaughter, by a
coroner’s warrant. He was admitted to bail, and subsequently got
the inquisition, under which he had been committed, quashed. It
was held that in an action against the coroner, he might recover as
special damage the costs of quashing the inquisition. Lord Camr-
BELL, ©. J.,said, “if the plaintiff had been discharged on a habeas
corpus instead of being admitted to bail, and had afterward got the
*inquisition quashed, I should have thought that he could not
: go eee a dee
have included the costs of quashing in his damages, according
to Holloway v. Turner. There the object was to recover damages
for seizing and selling the goods, which he might have done without
setting aside the judgment. But here, he was only released from
prison upon giving bail to appear and take his trial. He was still
liable to surrender on his own recognizances, and was not a perfectly
free man till he had got rid of the inquisition. By doing that he
was restored to his original state, but until then, the effects-of the
wrongful imprisonment were not done away with. Therefore this
is damage which flowed from the wrongful act of the defendant.” *

Sec. 91. Nor when he had no real defense.

As a further consequence of the principle, that costs of suit must
be the necessary result of the defendant’s misconduct, it follows that
they cam never be allowed for where the plaintiff’ had no locus:
standi in law in the former action. Where this is the case, all
costs were clearly incurred in consequence of his own obstinacy or

1 Hodges ». Litchfield, 1 Bing. N. * Foxall o. Barnett, 23L. J. Q. B.

C. 492. 8; 2 EH. & B. 928.
* Holloway v. Turner, 6 Q. B. 928.
124 Grnerat Princretes or Damage.

ignorance. “No person has a right to inflame his own account
against another, by incurring additional expense in the unrighteous
resistance to an action which he cannot defend.”* The question in
these cases is, whether the ‘plaintiff, in defending the action, did
what a reasonable man would do under similar circumstances, where
he had no other judgment but his own to resort to. And accord-
ingly where the plaintiff's ship had been run down by the defend-
ant, and the plaintiff had been forced to employ a steam-tug, the
owners of which claimed as salvage 1507. and commenced a suit in
the admiralty court; the plaintiff paid in 202. and was adjudged to
pay 452. more; held that, he could not recover the costs of this suit
against the defendants; and Parks, B., said it was like the case of
repairs, in which it has been held that if the party chooses to stand
the consequence of an action by the tradesman for the value of the
repairs, he cannot charge the expense of that upon the party who
did the original wrong, which made the repairs necessary.” Accord-
[*73 ] ingly where a *bill, accepted by the plaintiff, was deposited
with the defendant, as security for a loan, and he after the
loan was repaid indorsed the bill to a third party, who on its dis-
honor arrested the plaintiff, only the value of the bill was allowed
in an action against the defendant, and not the cost of the arrest, as
he ought to have paid it when due.* And so in asimilar case, where
the plaintiff had defended the action.‘ And the rule is the same,
though the plaintiff is accommodation acceptor, who has been sued
on his acceptance, and is now suing the accommodation drawer.’
So ina case in which the plaintiff guaranteed A that defendant
would upon demand pay A whatever should from time to time be
due. A demand was made upon defendant, and upon non-payment
a writ issued against plaintiff for the amount, this being the first
notification he received. He allowed judgment to go by default,
and execution was levied upon his goods. It was decided that he
might recover against the defendant the costs of the writ, but not of
1 Short v. Kalloway, 11 A. &E. 29; 3 Roach », Thompson, 4 C. & P.
Ronneberg v. Falkland Islands Co., 194.
170. B. W.8.) 1; 34 LJ. OP. 4 Bleaden ». Charles, 7 Bing. 246.

84; Godwin v. Francis, post, p. 129; ° Beech v. Jones, 5 C. B. 696. The
Pow v. Davis, 1 B. &S. 220; 80 L. contrary doctrine was assumed in

J. Q. B. 257. Jones v. Brooke, 4 Taunt. 464 ; Strat-
* Tindall 0, Bell, 11 M. & W. 228, ton». Mathews, 3 Ex. 48; but the rule
232. laid down in the text seems clearly to

be correct.
Costs or Former Action. 125

any other proceeding. That was the only expense to which he was
necessarily put, as he was supposed by law to have the money ready,
without the process of execution.’

This case seems to overrule a decision of Lord Harpwicke’s, who
allowed in such an action the costs of an extent issued by the crown
against a surety, which he had contested some time. In answer to
the objection that the debt was improperly disputed, he said, “I
know of no such distinction.” He also relied upon the fact that an
extent is both an action and execution, and said that the surety
could not be supposed prepared to pay the claim immediately.’
Where, however, two sureties had entered into a warrant of attor-
ney, to secure the debt of their principal, and upon his default
judgment was entered upon the warrant, and execution issued
against one surety, who had to pay the debt and costs of the execu-
‘tion, it was decided that he might recover half of the costs against
his co-surety.° This is quite consistent with the previous cases,
because very *possibly the execution was the first notice he [#74]
received that his liability was about to be enforced. ,

Sec. 92. Cost of defending action where liability is undefined.
f

In the cases just mentioned, the resistance made to the original
proceeding was not only ineffectual, but useless. But there is an-
other class of cases, where the defense is maintained only for the
purpose of ascertaining the extent of a liability which is previously
undefined. The person against whom the claim is made would be
acting properly in going to trial, or at all events letting judgment
go by default, and having damages assessed upon a writ of inquiry.
Suppose another person is liable to him upon what is substantially
the same cause of action ; can he recover against the last-named per-
son the costs which he has incurred in ascertaining the extent of his
liability? The rule formerly laid down was, that if the defendant
in the first action placed the facts before the person whom he sought
ultimately to charge, and that person declined to intervene and left
him to take his own course, it would be a question for the jury,
whether it was reasonable to defend, and whether the defense was
conducted in a reasonable manner. And in deciding that question,

' Pierce 0, Williams, 28 L. J.Ex. ° Ex parte Marshall, 1 Atk. 262.
822. 3 Kemp v. Finden, 12 M. & W. 421.
126 GeneraL Principres or Damaae.

the jury would have to consider whether it was more prudent to
settle the matter by a compromise, or to pay money into court, or
to let judgment go by default.!. And this seems still to be the law,
where the cause of action in each case is the same, and where the
verdict in the first case would be conclusive in the second case. But
where there are two distinct contracts, upon which two distinct
causes of action arise, even if they arise in each instance out of the
same facts, it is now held that a person, who defends an action
against himself, cannot recover the costs he has incurred from’ the
person whom he sues in his turn. In Mors le Blanch v. Wilson,’
. the owner of a ship sued the charterer for delay which had been
caused by the neglect of the consignee of goods to take delivery from
the charterer. In an action by the charterer against the consignee,
it was held that he might recover, not only the damages he had
been compelled to pay to the owner, but also the costs he had
iucurred in defending the action. The jury found that the defense
[*75 J was a reasonable one. This *case, however, was disapproved

ina later one before the exchequer chamber.’ There Hard-
ing contracted with Baxendale to forward two pictures for him to
Paris, and Baxendale contracted with the railway company to carry
them. By the negligence of the company the pictures were lost.
Harding sued Baxendale, who offered the defense to the railway
company. ‘The latter refused to take any part in the action. After
verdict against Baxendale, he sued the railway to recover damages
and his costs of the first action. He recovered his costs in the court
of exchequer, on the authority of Mors le Blanch v. Wilson, but
this decision was reversed in the exchequer chamber. CotEripGs,
©. J., and Kzative, J., thought the case exactly the same as the
authority cited, but were willing to set it aside. They held that
the defense was an unreasonable one, and that where there were
two distinct contracts, the costs of defending an action upon one
could not be considered as the proximate result of a breach of the
other. Lusu, J., distinguished the two cases, on the ground that in
the former the assessment of damages in the first action was conclu-
sive as to the amount recoverable in the second, while in the case

? Mors le Blanch v. Wilson, L. R., 8 2L. R., 8 C. P. 227.

C. P. 227, 238. See post, p. 127, as to § Baxendale ». L. C. & D. Ry. Co.,

making the third person party tothe L. R., 10 Ex. 85; 44 L. J. Ex. 20.
action,
Costs or Former Aotion. 197

before them it was not conclusive. Quam and Arcurmatp, JJ.,
thought there was no such distinction, but seemed to be of opinion
that if the one verdict would settle both cases, the costs of arriving
at it might be recoverable from the defendant. Quain, J., said:}
“Tf this were a contract of indemnity where, although there may
be two contracts in form, there is only one in substance, our decision
might be in favor of the plaintiffs. In such a case, a surety, who is
called upon to pay the debt or duty owing from the principal, may
well be justified in defending an action at the principal’s expense.
The cases which have been referred to, with one exception, are all
cases of indemnity, and really have no application here. For we
have to deal with two separate and independent contracts, and it
would, it seems to me, be very unreasonable to hold that the plain-
tiffs should be able to charge the defendants against their will and
without their sanction, with the costs of an action brought upon a
contract made by the plaintiffs with *Harding, to which the [*76]
defendants were no parties, and with which they had no con-
cern whatever.” And Axcureaxp, J., said:? “The contracts were
wholly independent, and the damages recovered against the plain-
tiffs by Harding were not of necessity the same as those which the
plaintiffs could recover against the defendants. The assessment in
the first action could not in any shape be conclusive against the de-
fendants.” The case was followed in the very recent case of Fisher
w. Val de Travers Asphalte Company.* Therea Tramway Company
contracted with Fisher to construct a tramway, and Fisher con-
tracted. with the defendants to lay asphalte. The defendants did
their work so badly that one Hicks was injured. He sued the Tram-
way Company, and Fisher undertook the defense. The defendants
refused to interfere. Fisher settled the claim by paying 70d. dam-
ages and 40/. costs. He also incurred 18/. for his own costs. He
then sued the defendants for the three sums. The jury found that
he acted reasonably in compromising the claim. The 70/. was
allowed, but the claim for costs was disallowed on the authority of
Baxendale v. London, Chatham and Dover Railway, cited above,
though Brett, J., said: “But for the case referred to, I must con-

1L, RB, 10 Ex. 44, 210. P. D. 611; 45 L. J. 0. Pz
?L. R., 10 Ex, 45. 479.
128 GernERAL Prinoretes or DamaceE.

fess I should have been unable to see any distinction between the
damages and the reasonable costs of ascertaining their amount.”

Sec. 93. New practice for settling liability as to all parties interested.

Under the system of procedure recently introduced, a defendant
who claims to be entitled to an indemnity or relief over against a
third person, or for any other reason to have a question in the
action determined, not only as between the plaintiff and himself,
but as between himself and a third person can, on obtaining proper
leave, give notice to the latter so as to enable him to dispute the
plaintiff's claim as against the defendant. If he does not do so, he
will be deemed to admit the validity of a judgment obtained against
the defendant by consent or otherwise.’ A jury, in considering
[*rTy whether the *defendant took a reasonable course in defend-

ing an action, would take into consideration the opportunity
which he had under the new practice of avoiding costs himself, by
putting the person from whom he claims indemnity or relief in a
position to defend the action.

Sec. 94, False assertion of authority by agent. Damages include costs.

One who professes to contract as agent for another must, unless
there be something in the transaction to rebut the implication, be
taken to warrant that the authority, which he professes to have, does
in fact exist ; and if he has no such authority, he is liable to make
good to the person who enters into the contract upon the faith of
his being duly authorized, all the damage which is the natural and
proximate consequence of the false assertion of authority." This
will include the costs of unsuccessful legal proceedings taken by
such person against the supposed principal for the purpose of en-
forcing performance of the contract or recovering damages for its

1Ord. 16, R. 17 to 21. It is not

* Collen v. Wright, 7 E. & B. 301;
necessary that the contract between

26 L. J. Q. B. 147; affirmed in Ex.

the plaintiff and the defendant should
be the same as that between the de-
fendant and the third person, nor that
the measure of damages should be the
same. It is sufficient if there is an
identity of a question between both
sets of litigants. Swansea Shipping
Co. v. Duncan, 1 Q. B. D. 644; 45 L.
J. Q. B. 638; Bower v. Hartley, 1 Q.
B. D, 652; 46 L. J. Q. B, 126.

Ch. 8 E. & B. 647; 27 L. J. Q. B. 215.
Where the principal, for whom the de-
fendant professed to be authorized to
contract is insolvent, the damages will
possibly, be nil. Per Buacksurn, J.,
Richardson v. Williamson, L. R., 6 Q.
B. at p. 279; and per Honymay, J.,
bee v. Propert, L. RB, 8 C. P.
Costs or Former Action. 129

breach ; if at least it was reasonable under the circumstances of the
case that such proceedings should be taken, or if the professed agent
was made aware of the litigation and sanctioned it, either expressly,
or by allowing it to be continued without avowing his want of au-
thority... And though it may be imprudent in some cases to com-
mence proceedings without warning him of the course which it is
intended to pursue, it is not essential that he should be consulted, it
being a question for the jury in each case whether the complaining
party exercised due caution under all the circumstances of the case
and whether the legal proceedings were reasonably adopted.”

Conversely, no action will lie against a person who has made a
~ false representation of authority, for which he would otherwise be
liable, if, notwithstanding the falsity of the *representation, [#78]
the plaintiff is in a position to enforce all the rights he
would have had, if the representation were true; @ fortiord not, if
in point of fact he has enforced them. For the cause of action
arises not from the false statement alone, but from the injury which
has accrued to the person who cited upon it. This is at once the
ground of liability, and the measure of damages.*

Sec. 95. What false statement is actionable.

It must be observed that a person who makes such an untrue
statement of authority is equally liable whether he bona jide believed
in that which he alleged, or actually knew it to be false.* For the
basis of the liability is that another has accepted, and acted upon
his statement as true. But for this purpose the representation must
be one of fact, and not of law. Because a statement of fact induces
the person to whom it is made to dispense with inquiry. But a
statement of law is merely an expression of opinion, and every one
is bound either to know the law himself, or to take the usual steps
for satisfying himself upon it... And on the same principle mis-

> Collen v. Wright, ubi supra; Ran- Ch. 777; affirmed in principle, L. R.,
dell v. Trimen, 18 C. B. 786; 25L. J. 7H. L. 102.

C..P. 807. And see the cases cited, 4 Collen v. Wright, 8 E. & B. 657;
post. Weeks v. Propert, L. R., 8 C. P. 427,
* Hughes v. Graeme, 33 L. J.Q. B. 487.
335; Collen v. Wright, 7H. & B. 314; 5 Rashdall v. Ford, L. R., 2 Hq.
26 L. J. Q. B. 151, per Compton, e 750; Beattie v. Lord Ebury, L. R., 7
Godwin v. Francis, i. R., 5 C. P.306; Ch. "VTT, 802; Eaglesfield v. London-
39 L. J.C. P. 125, per Boviuy, C. J., derry, 4’ Ch. D. 693. See as to what

and see post, 298. isa statement of law, per JESSEL, M.
3 Beattie v. Lord Ebury, L. R., 7 R., 702.

17
130 GeneraL Princietes or Damage.

representation does not exist when each party is perfectly cognizant
of the true state of affairs,! or where the untrue statement has not
been the operating motive upon the mind of the other party.’

Sec. 96. Case of defendant’s conduct exposing plaintiff to injunction.

The above cases are merely special illustrations of the general
principle, that where the wrongful act of one person places another
in a position in which he necessarily or reasonably has recourse to law,
the costs incurred by the former will be recoverable from the latter.
Accordingly where the defendant had employed the plaintiff to man-
ufacture fire bricks for him marked with what was to the knowledge
of the defendant, but not of the plaintiff, an infringement of the
trade-mark of another maker, who, in consequence, filed a bill in
chancery against the plaintiff for an injunction and account ;
[*79] *the plaintiff compromised the suit in chancery and brought

an action against the defendant to recover the amount which
he had paid, and the costs to which he had been put. It was ob-
jected on demurrer to the declaration that the plaintiff, having acted
innocently, might have successfully defended the suit. But the
court of queen’s bench were of opinion that the proceedings in
chancery were well founded, and, therefore, that the plaintiff had a
good cause of action for his costs and expenses; and Crompton, J.,
with the acquiescence of Hitz, J., went so far as to say, “if the
natural consequence of the act of the defendant is to plunge the
plaintiff into a chancery suit, whatever the result may be, I am not
prepared to say that that would not be a sufficient damage to ground
an action at law.” *

Sec. 97, Tenant holding over.

Similarly, a landlord, being entitled to recover from his tenant all
the loss which he may sustain by not being put in possession of the
premises at the end of the term, can recover the costs of ejecting
an undertenant who holds over, though it be against the will of the
tenant ;* and where a tenant held over, and an action was conse-
quently brought against the landlord by a person to whom he had

' Per Lord Hatuerzey, L. R., 7 H. * Dixon v, Fawcus, 3 E. & HE. 587;
L. 180; Eaglesfield », Londonderry, 4 30L. J. Q. B. 187,

Ch. D. 698. * Henderson », Squire, L. R., 4Q. B.
* Clapham v. Shillito, 7 Beav, 149. 170.
Costs or Former Action. 131

agreed to let the premises in the ordinary way, the landlord was
held entitled to recover from the old tenant the damages and costs
which he had to pay the new tenant, and likewise his own costs of
defending the action up to a point which was found to be reason-
able.}

Sec. 98. Case of warranty and resale.

There are several cases in which it appears to have been laid down
as a general rule, that where goods are sold with a warranty by A
to B, and B resells with a similar warranty to C who sues and re-
covers against him for breach of ‘warranty, B’ may recover against
A, not only the costs and damages he had to pay ©, in the former
action, but also his own costs incurred in defending it.” But it has
been pointed out by Paxxs, B.,° that Lewis v. Peake was decided
on the ground that the plaintiff was not aware at the time he sold
the horse, that the warranty was not complied with. Accordingly,
where plaintiff *had purchased a horse of the defendant with

eee : [ *80 ]
a warranty of soundness, and sold it with a like warranty to ©
J.8., and the horse turning out unsound, J. 8. brought an action .
against him, which he defended, and failed; the jury having found
that the plaintiff ought to have discovered that it was unsound, at
the time he sold it to J.S., it was held that he was not entitled to
recover as specific damages the costs incurred by him in defending
the former action.‘ Because these costs arose, not from the breach
of warranty by the defendant, but from his own carelessness in
giving a similar warranty again.

Sec. 99, Costs allowable when defense sanctioned.

Of course, in all such cases as those above-mentioned, the defend-
ant in the second action will be liable for the costs of the first, if he
has advised or sanctioned a defense being set up ; because by direct-
ing a defense he has admitted that there were reasonable grounds
for defending.’ And it would seem that slight evidence upon this
point may warrant a jury in finding that the defense was sanc-
tioned. A sued B, in an action, in which B would have a remedy

1 Bramley v. Chesterton, 2 C. B. (N. 710M. & W. 255.
8.) 592; 27 L. J. ©. P. 28; Stoddard « ‘* Wrightup v. Chamberlain, 7 Sco.
v. Waters, 30, Ark. 156. 598.

* Lewis vo. Peake, 7 Taunt. 153; 5 Williams . Burrell, 1 C. B. 402;
Mainwaring v. Brandon, 8 Taunt. 202; Howes v. Martin, 1 Esp. 162..
Pennell ». Woodburn, 7 0. & P. 117.
<
132 GrnrERAL PrivoreLtes or DamaceE.

over against C; B gave notice to C of the nature of the action, and
called on him to come in and defend it. This C refused to do, but
did not forbid a defense being taken. B suffered judgment by de-
fault, and put A to the proof of his claim, at the writ of inquiry.
It was held that there was evidence to go to the jury that C had
sanctioned the defense, and the jury having included these costs in
the damages in the action by B against C, the court refused a new
trial.

And in another case, silence on the part of the defendant in the
second action, when written to by the defendant in the first action
for instructions how to act, was considered a sanction of the defense
to the first action.’

Sec. 100. But not when action brought for plaintiff's own wrong.

In no case can the costs of defending an action be recovered,
when that action is brought, not merely for the wrongful act of the
defendant in the second action, but also for some wrongful act of the
original defendant himself. Covenant by assignee of lease containing
covenant to repair, against lessee who had covenanted with him that
[81] he had repaired ; breach that he had *not repaired, in conse-

~ quence of which, plaintiff, who had himself assigned over
with a similar covenant, had been sued by his assignee, and forced
to pay 1202. to settle. The jury, in the second action, found that
the plaintiff had only been damnified by the breach of defendant's
covenant to the extent of 507. On leave reserved to add the costs
plaintiff had incurred in the former action, the court held, that as
the amount paid in it was greater than that found by the jury to
have been the damage caused by the defendant’s non-repair, the
difference must be taken to have been damage caused by the plain-
tiffs own non-repair. This being so, the defense of the action
brought against him by his assignee, and the costs so incurred, were
not the necessary consequences of the defendant’s breach of con-
tract. Accordingly, several cases have decided, that where A
leases to B, with covenants, as for instance to repair, and B makes
an under-lease to C, with covenants similarly worded, and C neglects
to repair, in consequence of which A sues B; B, in his action

’ Blyth v, Smith, 5 M. & G..405. § Short vo, Kalloway, 11 A. & E.

? Rolph v. Crouch, L. R., 3 Ex. 44; 28,
37 L. J. Ex. 8.
Costs or Former Action. 133

against OC, can only recover as damages the loss caused by the breach
of covenant, and not the costs of the former action.’ In all these
cases the covenants, even when identical in words, were really dif-
ferent in substance, because a general covenant to repair is construed
to have reference to the condition of the premises at the time when
the covenant begins to operate, and when the leases are granted at
different times, the covenants would vary substantially, in their
operation, and different amounts of damages would be recoverable.’
But in the case in the common bench, Mauts, J., said that even if the
covenants were identical in their effect, still where A has broken his
covenant, entered into with B, the loss must be considered to result
from that breach, and not from the breach of an independent cove-
nant entered into by A with C, though for the same object. In all
these cases the proper course for the plaintiff would have been to
pay the proper amount when demanded before action,’ or suffer
judgment by default.*

*Cases like those just mentioned, in which a party merely
covenants to do a particular thing, are different from those
in which he covenants to indemnify some one else against the conse-
quences of his not doing it. In the latter case “ the defendants would
be responsible, unless they had put themselves into the same condi-
tion as the plaintiffs, and saved them from all harm, and among
other things from the costs of the action brought against them ; and
if the plaintiffs had desired to be so secured, they might have made
themselves safe by taking a covenant of indemnity against any
breach of the covenants in the original lease.” ° And the reason of
this distinction is obvious on referring to the doctrine which is the
foundation of all damages, viz., that they must be the natural result
of the wrong alleged. A covenant to repair involves no other obli-
gation than simply that the premises should be repaired. Breach
of the covenant entails no other injury than that resulting from the
disrepair, the measure of which is the sum of money necessary to
restore things to the state in which they should have been kept. But
a covenant to indemnify at once leads the mind to contemplate

[*82 ]

' Penley v. Watts, 7 M. & W. 601; and see Baxendale v. L. C. & D. Ry.
Walker v. Hutton, 10 id. 249; Logan Co., L. R., 10 Ex. 35, ante, p. 126.
v. Hall, 4.0. B. 598, overruling Neal 310 M. & W. 258.

v. Wyllie, 3B. & C. 533. 4 Smith o. Howell, 6 Ex. 730.
° Per Parke, B., 10M. & W. 258; * Per Parke, B., 7 M. & W. 609,
4

134 GerneraL Princietes or Damages.

ulterior consequences, the most obvious of which is the risk of an
action against the party indemnified, for the non-performance of
duties, which the party indemnifying has taken upon himself.
Accordingly in an action on a separation bond, by which the trus-
tee indemnifies the plaintiff against debts incurred by his wife after
separation, the husband was allowed to recover not only the debt,
but the costs of an action against him. And it is not necessary to
give the surety notice of the first action; but if notice is given to
him, and he refuse to defend the action, in consequence of which
the person to be indemnified is obliged to pay the demand, that is
equivalent to a judgment, and estops the other party from saying
that the defendant in the first action was not bound to pay the debt.!
And full costs as between attorney and ‘client will be allowed.’
Even in such cases, however, the costs to be recoverable must be.
necessarily incurred. A man has no *right, merely because
he has an indemnity, to defend a hopeless action, and put
the person guaranteeing to a useless expense.’ And although the
indorser of a bill of exchange is in a certain sense a surety for the
acceptor, there is no such privity between them as will enable the
indorser, who has been forced to pay the bill, to recover against the
acceptor re-exchange, much less costs incurred by him in an action
on the bill.’

The same principle applies where a person authorizes another to
do an act in his name and indemnifies him against the consequences.
Thus, where a landlord authorized a broker to distrain, and under-
teok to indemnify him against all costs and charges in respect of
any law expenses or actions that might arise or be brought against
him, and the broker distrained in a perfectly regular way, but the
tenant brought a vexatious and groundless action against him, which
he defended, and the tenant was nonsuited, the broker was held en-
titled to recover from the landlord the costs of defending the action.
It was urged that the landlord only bound himself to indemnify
against the costs of actions which might be brought on the ground
that there was no right of distress, but it was considered that the

[ *83 ]

‘ Duffield v. Scott, 8 T: R. 374; 510 M. & W. 259; Gillett ». Rippon,
Jones v. Williams, 7 M. & W. 498. 1M. & M. 406; Knight v. Hughes,
* Smith o, Compton, 3B. & Ad.407; id. 247.
Howard v. Lovegrove, L. R., 6 Hx. 48; * Dawson v. Morgan, 9 B, & C. 618.
40 L. J. Ex. 18.
Costs or Former Action. 185

indemnity extended to all actions to which the broker might be sub-
jected, except for actual misconduct or default of himself or his
servants."

So where an execution creditor pointed out to the sheriff a wrong
person as his debtor, and the sheriff arrested him and was then sued
for the wrongful arrest, and defended the action without communi-
cating with the creditor; it was held that the sheriff could only
recover these costs in an action against the creditor, if the defense
of the action by him without communication with the creditor was
a reasonable course to take under the circumstances, and that
whether it was so or not was a question for the jury.’

Sec. 101. Costs of action against two.

The last point upon which we need remark is where the first
action is against two jointly, and the second is brought *by #84]
one of the two alone. An instance of this sort occurred
where two were indicted for a conspiracy. It was held that if one
employed an attorney he might, in an action for malicious prosecu-
tion, properly charge the costs of defending both, because each was
interested in the acquittal of the other. But if each had a distinct
defense, as, for instance, if one alone proved an alibi, it was said
that the case might be different. There, however, the costs would
be easily severable, and the jury would be bound to consider how
they should be borne.*

‘ Ibbett 0. De la Salle, 6 H. & N. 2 Caldbeck ». Boon, 7 Ir. Rep. C.

288; 80 L. J. Ex, 44. L. 32.
° . ? Rowlands v, Samuel, 11 Q. B. 39.
136 GernerRAL PrincieLes or Damaae.

CHAPTER VI.

PERIOD UP TO WHICH DAMAGES ARE CALCULATED.

Sec. 102. Time to which damages assessed. Not allowed before cause of

action arose.

108. Rule where damage has arisen since action brought.

104. Repudiation of contract.

105. Negligence of attorneys.

106. Interest.

107. Probable future loss.

108. Evidence of specific damages after action.

109. Damage is not recoverable where the subsequent injury is not the
necessary result of the defendant’s act. ,

110. Nuisances and continuing trespass.

111. Damages in case of continuing trespass.

112. Liability to pay money may be allowed for.

Sec. 102. Time to which damages assessed. Not allowed before cause of action
arose.

The next subject of inquiry relates to the period of time in ref-
erence to which damages may be assessed.

It is, of course, quite clear that no damages can be given on
account of any thing before the cause of action arose. Therefore,
where the plaintiff claimed damages for not grinding at his mill,
from 2 Jac. I. to the 12 Jac. IL, and at the same time showed that
his title to the mill dated from 11 Jac. I, general damages being
given for the plaintiff, the judgment was arrested.! And similarly
where the declaration stated that the defendant on the third of
August caused the plaintiff's meadow to be overflowed, whereby he
lost all the use and profit of it from the second of July.’

Sec. 103. Rule where damage has arisen since action brought.

Cases of much greater difficulty often arise when the question is
up to what time, subsequent to the cause of action, damages may be
assessed. Whether they must be limited by the commencement of
the action, or may be calculated up to time of verdict, or to an
indefinite period afterward. The result of these decisions seems to

‘ Harbin v. Green, Hob. 189. ® Prince v. Moulton, Lord Raym. 248,
Periop vp To wich Damages ARE CALCULATED. 137

be, that damages arising subsequent to action brought, or even to
the date of verdict, may be taken into consideration, where they are
the natural and necessary result of the act complained of, and
where they do not themselves constitute a new cause of action.
Hence, where an action was brought by a master for an injury to
his apprentice, he was allowed to receive such damages as would
compensate him for the loss of service during the remainder of the
term, for such subsequent loss could never form the ground of a
fresh action, the action *being founded not upon the damage [#85 J
only, but upon the unlawful act and the damage.’ And, on
this principle, where a plaintiff, who had recovered in a previous
action for assault and battery, brought a fresh action upon another
piece of his skull coming out, it was held that the former. recovery
was a bar; Horr, C. J., said, “Every new dropping is a new nui-
sance, but here is not a new battery, and in trespass, the grievousness
or consequence of the battery is not the ground of the action, but
the measure of damages, which the jury must be supposed to have
considered at the trial.” This doctrine has been applied in some
very recent cases. In one the facts were, that the defendant had
excavated up to the borders of his own mine, and then made an
aperture in the plaintiffs, through which water continued to flow
into the mine of the latter. It was held, first, that there was no
legal obligation upon the defendant to fill up the aperture so made,
and that the leaving it open did not amount to a continuing nui-
sance; secondly, that a recovery in-a former action for making the

*Hodsoll v. Stallebrass, 11 A. &
E. 301, 305.

In an action for assault and battery
the plaintiff may recover for all dam-
age accruing after, as well as before
action brought, and such probable
damages as may thereafter accrue, if
they are the natural and probable con-
sequences of the injury. Birchard v.
Booth, 4 Wis. 67. The extent of the
injury is to be considered. Slater 2.
Rink, 18 Ill. 527.

In an action for personal injuries,
damages are to be given not only for
expenses, loss of time, etc., up to the
time of bringing the action, but also
up to the time of verdict, and for such

18

probable damages as may thereafter
accrue as the natural result of the in-
jury. In other words, as there can
be but one recovery, the measure of
damages is the direct expense, incon-
venience, pain and pecuniary loss sus-
tained, and likely to be sustained in
the future, and the plaintiff’s loss of
earning power from the injury. Mc-
Laughlin». Corry, 77 Penn. St. 109;
Klein v. Jewett, 26 N. J. Eq. 474;
Howell ». Goodrich, 69 Ill. 556; Aaron
», Second Av. R. R. Co., 2 Daly (N.
Y.C. P.), 127; Baltimore, etc., R.
R. Co. v. Shiply, 31 Md. 368.

2 Fetter v. Beale, 1 Salk. 11.
188 GeneraL Principtes or DAMAGE.

aperture barred all consequential damages from its remaining open."
Similar questions often arise in cases where a person by digging,
mining, building, or the like, affects the plaintiff's land or house in
such a manner as to produce injurious consequences, which manifest
themselves at a later period. Here it is now settled that all subse-
quent or recurring damage may be assessed, and can only be recov-
ered in a suit brought upon the original cause of action.” If the act
which causes the damage is in itself unlawful, as, for instance, a tres-
pass upon the plaintiff’s land, then it is the cause of action.’ If it is
lawful in itself, as for instance some act done by the defendant on
his own land, which becomes unlawful by the injury it produces to
the plaintiff, the cause of action dates from the injury.‘ *But
in either case, when once a right of action has accrued, no
fresh damage will entitle a party to a fresh suit.

[*86 ]

Sec. 104. Repudiation of contract.

‘A similarprinciple is applied to contracts to be performed at a
future time. If before the time for performance arrives one party
absolutely and definitely repudiates the contract, the other party is
entitled either to wait till the time arrives, and then bring his action,
or to treat the contract as broken, and sue for the breach at once.

1 Clegg ». Dearden, 12 Q. B. 576.

? Nicklin v. Williams, 10 Ex. 259;
23 L. J. Ex. 335; affirmed in this re-
spect per Lord Wrstgury, 9H. L.C.
512; 34 L.J.Q.B. 186; per WiiuEs,
J., E. B. & EH. 658; 28 L.J. QB.
381; Hamer v. Knowles, 6 H. & N.
454; 30 L. J. Eq. 102.

Where the damages are of a perma-
nent character and go to the entire value
of the estate affected by the act com-
plained of, a recovery may be had for
the entire damage in one action. Troy
», Cheshire R. R. Co., 283 N. H. 101;
Parks v. Boston, 15 Pick. (Mass.) 198;
Cheshire Turnpike Co. v0. Stevens, 13
N. H. 28. Thus, in an action for
overflowing the plaintiff's land by a
mill dam, the lands being submerged
thereby to such an extent and forsuch
a period asto make it useless to the
plaintiff for any purpose, the jury were
instructed to find a verdict for the
plaintiff for the full value of the land.
Anonymous, 4 Dall. (Penn.) 147. So
where a railroad company, by perma-

nent erections, imposed a continuous
burden upon the plaintiff’s estate,
which deprived him of its beneficial
use for any purpose, it was held that
the whole damage might be recovered
at once. Troy v.Cheshire R. R. Co.,
ante ; Blunt ». McCormick, 3 Denio
(N. Y.), 283; Thayer 0. Brooks, 17
Ohio, 489. But where the extent of a
wrong may be apportioned from time
to time, and does not go to the entire
destruction of the estate, or its benefi-
cial use, separate actions not only may,
but must be brought. Plumer 2, Harper,
3.N.H. 88; Cheshire Turnpike Co. o.
Stevens, ante; Dorman v. Ames, 12
Minn. 451; Duncan 0, Markley, Harp.
(S. C.) 276,

* Spoor v. Green, L. R., 9 Ex. 99;
43 L. J. Ex. 57.

* Backhouse », Bonomi, 9 H. L. Ca.
503; 84 L.J.Q.B. 181. See Eccle-
siastical Commissioners », N. EH. Ry.
Co., 4 Ch. D. 845, as to the effect of
fraud or concealment upon the opera-
tion of the statutes of limitation.
Periop uP To wHicH Damages ARE CALCULATED. 139

In the latter event he will be entitled to such damages as would have
arisen from the non-performance of the contract at the appointed
time. “ But in assessing the damages, the jury will take into con-
sideration whatever the plaintiff has done, or has had the means of
doing, and, as a prudent man, ought to have done, whereby his loss
has been, or would have been diminished.” ?

Sec. 105. Negligence of attorneys.

In suits against attorneys for breach of duty, the negligence is the
cause of action and not the consequential injury ;? no fresh suit can
be brought upon the accrual of fresh loss; hence it follows that in
such cases the jury may give as damages, not only what has been,
but what may naturally be, the result of the wrong complained of,
for otherwise there would be no redress.

Sec. 106. Interest.

In all actions upon contracts for a principal sum and interest, both
shall be included in the judgment up to the time when the plaintiff
is entitled to sign it; for the interest is an accessory to the principal,
and he cannot bring an action for any interest grown due between
the commencement of his action and the judgment init.° And this
is the invariable practice in actions on bills of exchange and other
debts which carry interest.’

Sec. 107. Probable future loss. ,

As an ‘instance of probable future loss being taken into consider-
ation, I may mention a case where the agreement was, that the
defendant should appoint the plaintiff to the command of one of his
ships, which was chartered by the East India Company for two
voyages. It appeared that it would *be discretionary with [*87]
the company to allow him to command on the second voyage ;
but they generally permitted such appointments to be renewed. It
was held that the jury might give damages for the loss of both
voyages, though the time for the second had not yet arrived.*

"Per Cockspurn, C. J., Frost v. ? Short v. M’Carthy, 3 B. & A. 626;
Knight, L. R., 7 Ex. 111; 41 L..J. Howell v. Young, 5 B. & CO. 259.
Ex.78; following Hochsterv. De La Johnson v. Bland, 2 Burr. 1087.
Tour, 2E. & B. 678; 22 L. J.Q. B. 42 Wms. Saund. 171d, n. (g.); 2
455; Cherry 0. Thompson, L. R., 7 Wms. Notes to Saund. 499.

Q. B. 573; 41 L. J.Q. B, 243; Roper 5 Richardson v. Mellish, 2 Bing.
Ce vonneey L. R., 8C. P. 167; 42 L. 229.
J.C. P. 65.
140 GerneraL Princretes or Damace.

Sec. 108. Evidence of specific damage after action.

The rule in all these cases seems to be, that general evidence of
matter accruing subsequent to the action may be used for the pur-
pose of showing what was the natural and probable result of the
defendant’s conduct; but that particular facts are not admissible, as
a specific ground of damage to be atoned for on their own account.
Hence, in an action for libel against a master of a ship, as to his way
of business, evidence was received of a falling off in the profits of
his next voyage, although it took place four months after action
brought; this being merely a mode of estimating the damage likely
to flow from the publication of the libel.! But in another case of
libel, it was held that evidence could not strictly be given of a
specific result, such as the arrest of the plaintiff subsequent to the
commencement of the suit, in consequence of the defamatory words;
if, however, no objection was made by defendant’s counsel, it might
fairly be left to the jury as showing the probable effects of the libel,
and would perhaps prevent a second action.”

Sec. 109. Damage is not recoverable, where the subsequent injury is not the
necessary result of the defendant’s act.

On the other hand, where the damages subsequent to the com-
mencement of the action are not the necessary result of the alleged
wrong, or where they might be the foundation of a fresh action,
they cannot be included in the verdict of the jury.

The first point was the ground of the decision in Hambleton ».
Veere,’ where the action was for procuring the plaintiffs apprentice
to depart from his service, and for the loss of his service for the
whole residue of the term of his apprenticeship, which had not yet
expired. General damages were given and judgment arrested.
Here it was not the inevitable result of the defendant’s act that the
apprentice should continue permanently absent, because possibly he

1 Ingram v, Lawson, 8 Sco. 471. In
an action for a nuisance, the condition
of the premises as they exist at the
time of the trial, may be shown, not
for the purpose pf recovering dam-
ages for injuries sustuined after the
commencement of the action, but for
the purpose of aiding the jury in

arriving ata correct estimate of the
nature and extent of the injury, by
comparison. Morris, etc., Canal Co.
v. Ryerson, 27 N. J. Law, 457; Hart
v. Evans, 8 Penn. St. 18.

® Goslin v. Corry, 8 Sco, N. R. 21.

*2 Wms. Saund. 170; 2 Wms.
Notes to Saund. 491.
Prriop vp To wHicH Damacss ARE CALOULATED. 141

might return.’ And *so where the declaration was against
an apprentice for going away before his time, whereby the
plaintiff lost his services for the said term, which was also unex-
pired.* This case would also have been open to the second objec-
tion, viz., that a fresh action would lie against him for every day he
remained absent.*

[ *88 ]

Sec. 110. Nuisances, and continuing trespass.

Upon the second ground many cases have been decided. A plain
application of the rule was in a case where, upon the execution of a
writ of inquiry against the defendant for necessaries supplied to his
sons, the jury took into consideration goods furnished up to a date
after the writ of inquiry.*. So where in an action for false imprison-
ment, damages were given-for a continuance of the imprisonment
after the commencement of the action ;° for every instant of deten-
tion without just cause is a new capture.” In cases, too, of nuisances
and continued trespasses upon land, as each instant the nuisance or
trespass is continued is a fresh ground of action, it,is clear the jury
cannot give damages beyond the commencement of the existing
suit.’ Where, however, the original act done was itself a trespass,
but is done by a person or body who are protected by statute
from any suit for any thing done under their powers, unless
brought within a particular time “after the act done,” no suit
can be brought for any continuance of such trespass; nor for any
consequential damage resulting from it after the period of limita-
tion.’ It would *follow, then, that damages in the first action [#89 ]
ought to constitute a full satisfaction for any injury that

1 See per LitTLEDALE, J., 11 A. &
E. 305. And so Lewis v. Peachey, 1
H. & C. 518; 31 L. J. Ex. 496. See,
also, to same effect, Covert v. Gray,
84 How. Pr. (N. Y.) 450.

? Horn v. Chandler, 1 Mod. 271.

711 4. &E. 304.

4 Baker v. Bache, 2 Ld. Raym. 1382.

* Brasfield v. Lee, 1 Ld. Raym. 329;
Hanbury v. Ireland, Cro. Jac. 618.

6 Withers v. Henley, Cro. Jac. 379.

1 Per Hout, C. J., Fetter v. Beale,
1 Salk. 11; Rosewell v. Prior, 2 Salk.
460; Holmes v. Wilson, 10 A. & E.
503; Hudson »v. Nicholson, 5 M. & W.
437; Thompson ». Gibson, 7 id. 456;
Battishill v. Reed, 18 C. B. 696; 25 L.
J.C. P. 290; Bankart v. Houghton,

28 L. J. Ch. 473; 27 Beav. 425; Beck-
with v. Griswold, 29 Barb. (N. Y.)
291.

§ Wordsworth v. Harley, 1 B. & Ad.
391; Lord Oakley v. Kensington Canal
Co., 5id. 188. But where, in such a
case, the maintenance of works in an
inefficient condition causes a recurring
injury to the plaintiff, as, for example,
by flooding his colliery in rainy
weather, a jury are not to give dam-
ages on the assumption that the works
will be continued in an inefficient con-
dition; and a continuance of the
wrongful act with fresh damages will
constitute a fresh cause of action.
Whitehouse v. Fellowes, 10 C. B. (N.
8.) 765; 80 L. J. C. P. 305.
142 GeneRAL Prinorptes or Damage.

could reasonably and naturally spring from it; for otherwise an
injustice would be done to the plaintiff. And here a curious diff-
culty might arise; for, although no fresh action can be brought after
the period of limitation has run out, there is nothing to prevent a
series of actions being brought during this period, since, except so
far as the statute interferes, the case would come under the rule as
to continuing trespasses laid down above.’

Sec. 111. Damages in case of continuing nuisance.

In fact, the whole law upon the subject of damages in the case’
of continuing nuisances or trespasses seems in a very unsatisfactory
state. Suppose the defendant to have built a house on the plain-
tif?s ground, this is a continuing trespass ; and as long as it lasts the
plaintiff may bring fresh actions, and ébtain fresh damages. In-
deed he must do so, because it would appear each action can only
re-imburse him for the loss sustained up to its commencement. The
defendant cannot protect himself against this succession of attacks,
because even if it were his desire, it is not in his power to enter the
plaintiffs land and put an end to the nuisance himself. The fair
rule in such a case would be, to give the plaintiff such damages as
would compensate him for the loss sustained up to the time of ver-
dict, and would pay him for putting the land into its original state.
If he chose to leave the trespass after this, it would clearly be
because he thought it advantageous to himself; and if so, he ought
not to be allowed to sue again. There is one case which is almost
in accordance with this view. It was an action on a covenant to re-
pair premises, and judgment for plaintiff on demurrer. The
premises had got into worse repair since the commencement of the
action, and the jury, in assessing damages, computed the expense
the plaintiff had been at in doing repairs which became necessary
between action brought and writ of inquiry. The judgment upon
this point was affirmed in error.’ It is quite clear in this case that
there was a new breach of covenant in allowing the premises to go
into worse repair since the issuing of the writ, for which a new
action might have been brought, and new damages *recovered.

*90 : :
[ I qhe jury, however, took the common sense view of the
1 Holmes v. Wilson, etc., ante, note 8 Shortridge ». Lamplugh, 2 Lord
Raym. 803.

y.
* Anthony v. Haney, 8 Bing. 186.
Prriop vp To wHicH DaMaGEs ARE CALCULATED. 1438

matter, and gave, as every jury practically does, such damages as
would re-imburse the plaintiff for all loss incurred up to the time
the case came under their cognizance.

Sec. 112. Liability to pay money may be allowed for.

Where the wrong complained of has involved the plaintiff in a
legal liability to pay money to a third party, the amount of this
liability may be included in the damages, though not yet paid by
the plaintiff. But it is otherwise where the obligation, though a
moral, is not a legal one. Therefore, where the declaration was for
wounding the plaintiff's son, whereby the plaintiff had been put to
great expense in medicine, ete., for his cure; it was held that, as to
the surgeon’s bill, the jury were to consider the amount as paid by
the plaintiff, since the surgeon could compel the payment of it; but
that the physician’s fees could not be taken into account, since they
had not been actually paid, and he could not enforce them.’

1 Mason v,. Barker, 1 C. & K. 100,

101; Smith o. Howell, 6 Ex. 730;
Randall v. Raper, E. B. & E. 84; 27
L. J. Q. B. 266.

2 Dixon ». Bell, 1 Stark. 287, Now
by 21 & 22 Vict., c. 90, s. 31, physi-
cians, if registered, may recover their

fees under a by-law of the college of
physicians, passed under this section.
Fellows of the college are prevented
from suing, but this does not extend
to members. See Gibbon v. Budd, 2
H. & C. 92; 82 L. J. Ex. 182.
144,

Sze, 1138.
114.

115.

116.
117.

118.
119.
120.

121.
122.
123.
124.
125.
126.
127.

128.
129.
130.
181.
182.
183.
134.
185.

136.
187.
138.
189.
140.

‘GENERAL PrincipLes oF Damace.

CHAPTER VII.

MITIGATION OF DAMAGES

Mitigation of damages must be pleaded if possible.

Evidence not to operate as a cross-action. Coliateral matter not
admissible to reduce damages, Conflicting dicta. Chance of
recovering against third parties. Matter subsequent not ground
for reducing damages in contract.

Must not conflict with laws of evidence. -Attorney’s bill and
freight are exceptions to general rule.

Effect of paying money into court.

General rules as to admissibility of evidence in reduction of dam-
ages,

Principle upon which reduction to be made.

Sale of specific chattel with warranty.

Evidence in mitigation of apparent injury inflicted by defendant.
Indemnity. Trover. Trespass. Crim. con. Breach of prom-
ise of marriage.

Injuries increased by plaintiff's conduct.

False imprisonment. Libel. Seduction

Set-off.

No set-off in actions for unliquidated damage. Judgment.

Set-off where the debtor promises to pay ready money.

Debt must be due.

Must be due in the same right. Parties to claim and counter-
claim need not be identical.

Partners.

Joint or several note or bond.

Husband and wife.

Executor. Claims by or against an executor.

Present practice under the English Statutes.

Trustee.

Public bodies having banking accounts in different rights.

Principal and agent where action is by principal. Case of broker
under del credere commission.

When action is by agent.

Companies.

Equitable set-off.

Cross-demand not sufficient, unless supported by some equity.

Equity must have jurisdiction over subject-matter.
Mitigation or Damage. 145

Ste. 141.
142.
143.
144.
145.
146.
147.
148.
149,
150.
151.
152.
153.
154.
155,
156.

Mere existence of cross-demand not sufficient.
Equitable plea.

Set-off against assignee.

Exceptions to rule that debts must be mutual.
Joint debt set off against separate debt.

Pleas in avoidance of circuity of action.
Mutual credit in bankruptcy.

Meaning of mutual credit.

What is credit.

Dealing with goods.

Must be due in same right.

A mere trader cannot set off.

Credit must exist at time of bankruptcy.
Set-off not limited to debts.

Case must admit of an account being taken.
Set-off extinguishes debt.

Sec. 113. Mitigation of damage must be pleaded if possible.

As to the consequence of a declaration claiming on its face dam-
ages for a period after action, or before the cause of action arose,
see post, p. 492.

It now remains to discuss the cases in which evidence may be
given in mitigation of damages.

The leading principle upon this question is, that matter which if
pleaded would have gone in bar of the action, cannot be given in
evidence to reduce damages unless pleaded. Therefore, where the
action is for wrongfully discharging the plaintiff from the defend-
ant’s service, and the defendant only pleads payment into court, he
cannot show, in mitigation of damages, that he discharged the
plaintiff for misconduct. In an action of assault against the sheriff
if he pleads not guilty only, he cannot, for the same purpose, give
evidence of his writ.' So where the action was against a captain
of aship for assault and imprisonment, evidence that the plain-

1 Speck v. Phillips, 5 M. & W. 279,
281. Nor can he show that the value
of the property is less than that he
stated in his return upon the writ.
Allen v. Doyle, 33 Me. 420. But he
may show that the plaintiff bought in
the goods for less than their value,
and the plaintiff can then only re-
cover the actual loss; Forsyth v, Pal-

19

mer, 14 Penn. St. 96; so he may show
that the proceeds were applied in pay-
ment of a judgment against the plain»
tiff, but not that they were applied to
the payment of rent due from him or
any other claim not reduced to a
judgment. Cotton ». Reed, 2 Wis.
458; Graham ». McCreary, 40 Penn.
St. 515.
146

[#91]

GeneraL Princretes or Damage.

*tiff was one of the crew, and that the acts charged were a
punishment for his misconduct, was excluded.’

Nor in

trover can the defendant under not guilty be allowed to set up title

1 Watson v. Christie, 2 B. & P. 224.
And see Pujolas v. Holland, 3 Ir. L.
R. 533.

Matter in mitigation of damages
may always be given in evidence,
when it is of a character that tends
to excuse or justify the act of the
defendant, complained of. Thus, in
an action for an assault, the defend-
ant is always at liberty to show that
the plaintiff provoked it; Avery v.
Ray, 1 Mass. 12; and in such a case it
seems that previous provocations may
be shown. ‘Thus, in an action for a
trespass to the person, committed in
an affray, evidence offered by the de-
fendant, tending to show that the
plaintiff, during several years pre-
vious to the affray, had frequently
tried to provoke a quarrel with him,
and threatened on various occasions
to take his life (some of which threats
were made to the defendant, and all
of them brought to his knowledge
before the affray, should have been
received in mitigation of damages ;
Fairbanks v. Witter, 18 Wis. 287; or
in an action for trespass upon lands,
that he made permanent and valuable
improvements thereon; Gill v. Patten,
1 Or. (U.S.C. C.) 465; or in an action
on a replevin bond, that the property
replevied was in fact the property of
the plaintiff in the replevin suit ;
Ringold v. Bacon, 3 id. 257; or in an
action for damages done by cattle,
that they escaped upon the plaintiff's
land by reason of defects in his fence;
Young v. Hoover, 4 id. 187; or in an
action against one of two or more
wrong-doers, that the plaintiff has re-
ceived from one of them a certain
sum on account of the wrong, without
discharging him; Bloss v. Plymale, 3
W. Va. 393; so, in an action of trover
it may be shown that the property
has been returned to the plaintiff;
Dailey v. Crowley, 5 Lans. (N. Y.)
301; Delano v. Curtis, 7 Allen (Mass. ),
470; as in such a case, the party is
treated as having received the prop-
erty in reduction or mitigation of his
damages; Merrill v. Howe, 24 Me.
126; and, where the action is for con-

verting machinery, etc., the defend-
ant may show that it has always re-
mained on the plaintiff's premises.
Thus, if in an action for the conver-
sion of machinery in a workshop, it
does not appear that the defendant
has ever appropriated the same to his
own use, or removed the same, or had
the actual possession thereof, other-
wise than by being in the rightful
possession of the workshop, and the
alleged conversion consists in the re-
fusal to allow the plaintiff to remove
the same upon demand, a subsequent
notice to the plaintiff by the defend-
ant that he has relinquished all claim
to the machinery, should be con-
sidered in mitigation of damages.
yeee v. Curtis, 7 Allen (Mass. ),
70.

So, the defendant may show that
the plaintiff procured the goods from
the debtor in the writ, under such cir-
cumstances as to invalidate his title
as against the debtor’s creditors.
Leggett ». Baker, 18 Allen (Mass ),
470. So he may show that the prop-
erty was subsequently taken upon a
valid process against the plaintiff, and
this is the rule as to any person who
has wrongfully taken another's prop-
oe Bates v. Courtwright, 36 Il.

In an action against an officer for
not returning a writ, the continued
liability, and ability of the debtor
therein to pay may be shown in mitiga-
tion; Woolcott , Grey, Brayt. (Vt.)
91; so in an action for not arresting a
debtor upon a capias, the officer may
show that the debtor could have been
arrested by the plaintiff afterward if
he had chosen to do so, Thus, where
a constable received a writ with direc-
tions to serve it by arresting the de-
fendant’s body, an affidavit having
been duly filed that he was about to
leave the State, and the officer, errone-
ously thinking he was not bound to
serve it without indemnity, returned
the writ to the plaintiff, stating his
reasons for not serving it; and the
defendant remained publicly living
within the State for several months
Mitigation or Damage.

147

in a third party,) nor in trespass, a recovery of damages against a
co-trespasser who is not sued;* nor in an action for goods bargained
and sold, that there was a false representation as to their quality,

without a special plea.”

afterward, and the plaintiff had an
opportunity to issue another writ and
arrest him thereon, but neglected do-
ing so. It was held, in a suit against
the constable’s town for his neglect,
that these facts should have been sub-
mitted to the jury, to be considered
by them in connection with the ques-
tion of mitigation of damages. Blodg-
ett ». Battleboro’, 30 Vt. 579.

So in an action for levying on the
plaintiff's property as the property of
another, it may be shown that the
property was, at the time of the levy
or just previously thereto, in the
execution debtor’s possession under
such circumstances as indicated
ownership in him. Thus, on execu-
tion of a writ of inquiry, after a judg-
ment by default in an action for dam-
ages for trespass, in levying upon
plaintiff's property upon an execution
against a third party, the defendant
can show in mitigation of damages,
that, at the time of and before the levy,
the property was in the possession of
the execution defendant ; and also that
the plaintiff was not the owner of the
property, that fact not being neces-
sarily inconsistent with the right to
the possession; but he is estopped by
the judgment by default from show-
ing that the plaintiff had not sucha
title as would authorize a recovery.
Sterrett v, Kaster, 37 Ala. (S. 0.) 366.

In an action of trespass for digging
ore or quarrying stone from the plain-
tiff’s land, the defendant may show
in mitigation the expense of digging
or quarrying the same; Goller v. Fitt,
30 Cal. 481; so in an action for
wrongfully taking goods, it may be
shown that they were in the process
of manufacture, and that the cost of
completing them would be a certain
sum. Emmons v. Westfield Bank, 97
Mass. 230. The value of ore or stone
in its native bed is the rule of damages.
Barton Coal Co. v7. Cox, 89 Md. 1.

' Finch. v. Blount, 7 C. & P. 478.
’ Day v. Porter, 2M. & Rob.151.

The case of payment, which had caused

In an action for anuisance in erecting
mills and maintaining a steam engine
and furnaces in the vicinity of the
plaintif’s dwelling, the defendant
may show the general character of the
neighborhood, the various kinds of
business carried on there, and the
class of tenants by whom dwelling-
houses in that vicinity were in general
occupied, as also the probable disad-
vantage and loss to the plaintiff from
an inability to rent his houses, if, in
consequence of the destruction or re-
moval of the defendant’s mills, there
were no longer workmen to whom they
could be leased. Call v. Allen, 1
Allen (Mass.), 187. So, although the
fact that other causes conspire to
create a nuisance is not a defense to
the action, yet it may be shown in
mitigation; Sherman »v. Fall River
Iron Works Co., 5 Allen (Mass.), 213;
and generally, either in actions on the
case, or of trespass, the circumstances
that surround the transaction may be
shown either in aggravation or miti-
ation of damages; Parsons v. Pettin-
gell, 11 Allen (Mass.), 507; thus, in
the case last cited it was held that if
a building has been blown up without
right to stay the progress of a confla-
gration, the jury, in estimating the
damages, should consider the circum-
stances under which the building and
its contents were situated, and their
chance of being saved, even though
at the time they were not on fire, and
should determine the damages, with
reference to the pertl to which they were
exposed. The rule that the circum-
stances surrounding the transaction
are to be considered either to aggra-
vate or reduce the damages, is illus-
trated by numerous cases. Thus, in
an action for an assault, or for per-
sonal injuries, it is always competent
for either party to show the value of
the injured person’s time, that is, his
actual earning power, and the dam-

3 Woodhouse v. Swift,7 C. & P.
310.
148

GenerAL Prinories or Damage.

some contradictory decisions when it took place after action
brought,! was provided for by two rules of court,’ which enacted
that payment should not in any case be allowed to be given in evi-
dence in reduction of damages or debt, but should be pleaded in

ages are to be graduated accordingly,
and this is also the rule where the
injury results in death. Baltimore,
etc., R. R. Co. vo. State, 24 Md. 271.
See ante. So in an action for a
trespass upon realty, the defendant
may always show, in mitigation, that
he has the title to the property, and
although the gist of the action is the
trespass, yet the damages are always
to be restricted to the actual loss to
the plaintiff; hence, the fact of title
in the defendant is an important
element to enable the jury to draw the
line between the injury to the posses-
sion and the estate. So, the purpose
for which the entry was made is ma-
terial, as, although the facts may not
justify the entry, yet they may be such
as to very much lessen the damages
which, except for them, the plaintiff
might be entitled to. Thus, if the
landlord enters to make repairs which
are necessary, and which the lessee
neglects to. make, or if he enters to
make repairs which, by his lease, he
is bound to-make, but which the les-
see has forbidden him to make, the
damages would and should be much
less than they would be if his entry
was without color of excuse. Reeder
», Purdy, 41 Ill. 279.

In an action against a person for
entering and cutting down standing
trees, evidence that the plaintiff
verbally sold them to him, is always
admissible in mitigation. Wallace v.
Goodall, 18 N. H. 439. So, in an
action for a breach of contract, it may
be shown in mitigation that perform-
ance would have been useless to the

laintiff; Canal Co. v. Rowan,.4 Dana
(Ky.), 606; but such evidence does
not wholly excuse the breach. So, if
an action is brought by the payee of
a note against the payor, which was
given for the price of property pur-

1 See Lediard v. Boucher, 70. & P.
1; Shirley v. Jacobs, 2 B. N.C. 88;
Richardson v. Robertson, 1 M. & W.
468.

chased, he may show a partial failure
of consideration in mitigation.
Perley v. Balch, 23 Pick. (Mass.)
288; Harrington v. Stratton, 22 id.
510. In an action of trover against
a receiptor of property, or in an ac-
tion by the bailee against the bailor of
property for a time, the defendant
may show in mitigation of damages
that he owns the property. Buresly
v. Hamilton, 15 Pick. (Mass.) 40.
In actions for slander under the
general issue, the defendant can-
not give evidence of the truth of words,
but he may give evidence in mitigation;
Jarnigan v. Fleming, 43 Miss. 710;
Mousler v. Harding, 33 Ind. 176; Ad-.
ams 0. Smith, 58 Ill. 417; Miles v. Har- .
rington, 8 Kans. 425; Huson 0. Dale,
19 Mich. 17; Bush v. Prosser, 11 N.
Y. 357; but the truth of the words
cannot be given in evidence even in
mitigation. Hackett v. Brown, 2
Heisk. (Tenn.) 264; Brickett 0. Da-
vis, 21 Pick. (Mass.) 404; Barrows
». Carpenter, 1 Clifford (U.S.), 204;
Waggstaff x, Ashton, 1 Harr. (Del.)
503; Wormouth v. Cramer, 3 Wend.
395; McAllister ». Sibley, 25 Me. 474;
Owen v. McKean, 14 Il1.459; Thomp-
son ». Bowers, 1 Doug. (Mich.) 321;
Purple v. Horton, 13 Wend (N.Y.)
9; Grant 0. Hover, 6 Munf. (Va.) 13;
Swift v. Dickerman, 31 Conn. 285;
Williams ». Minor, 18 id. 464. But
evidence of the general bad character
of the plaintiff may be given, even
where the answer sets up the truth of
the words; Young »o. Bennett, 4
Scam. (Ill.) 43; Anthony o. Stephens,
1 Mo. 254; Eastland ». Caldwell, 2
Bibb (Penn.), 21; but not special acts;
Sawyer v. Hifert, 2 N. & M.(S8.C.)
511; Lamos v. Snell, 6 N. H. 418;
Bowdish ». Peckham, 1 Chip. (Vt.)
145. And evidence tending to rebut
the presumption of malice is admissi-

* Pl, Rules, T. T. 1853, 14, 22.
present practice is the same.
20, R. I

The
Ord
Miriaation or Damage.

149

'

bar; and that pleas containing a defense arising after the commence-
ment of the action, might be pleaded together with pleas of defense
arising before the commencement of the action.

ble under the general issue. Arring-
ton v. Jones, 9 Port. (Ala.) 139. Or
that the words were not used in a
slanierous sense. Brite v. Gill, 2
Monr. (Ky.) 65; Sibley ». Marsh, 7
Pick, (Mass.) 38. Orif the plaintiff
prove the speaking of words not laid
in the declaration, the defendant may,
under the general issue, prove the
truth of those words. Burke». Miller,
6 Blackf. (Ind.) 155. Or that the
suspicions astothe guilt of the plain-
tiff, as to the matter charged, gener-
ally existed, or that the defendant
heard the report from others, and only
repeated what he had heard, may be
shownin mitigation Leister o. Smith,
2 Root (Conn.), 24; Henson ». Veatch,
1 Blackf. (Ind.) 369; Calloway v.
Middleton, 2 A. K. Marsh. (Ky.) 372.
And any thing may be shown in mit-
igation under the general issue that
does not amount to a justification.
Wilson v. Apple, 3 Ham. (Ohio) 270;
Beehler v. Steever, 2 Whart. (Penn.)
313; Rigden v. Wolcott, 6G. & J.
(Md.) 418. So it is held that evi-
dence of the truth of the words may
be shown to disprove malice; Huson
». Dale, 19 Mich. 17; 2 Am. Rep. 66;
or evidence that tends to prove their
truth; Bush v. Prosser, 11 N. Y. 357;
Bisbey v. Shaw, 12 id. 67; thus, even
in the States where proof of the truth
of the words is not permitted in mit-
igation under the general issue, yet,
proof tending. to show that the plain-
tiff might be guilty of such acts as
are charged, may be given to disprove
malice, and thus reduce the damage;
as that prior to the speaking of the
words, a common report or suspicion
existed that the plaintiff had commit-
ted the act charged. Bridgman »v.

1See 5 M. & W. 282. This is the
rule in most of the States. This
species of defense being one that is in
opposition to the presumptions that
attach to the plaintiffs claims, it
would be decidely unjust to compel
the plaintiff to meet the defense of
payment without being apprised that

Hopkins, 34 Vt. 532; Wetherbee o.
Marsh, 20 N. H. 561; Sheehan v. Col-
lins, 20 Ill. 825; Cook ». Barkley, 2
N. J. 169; Moyer ». Pine, 4 Mich. 409;
Vanderveer v. Sutphin, 5 Ohio St. 293;
Springsteinv. Field, Anth. (N. Y)N.
P. 252; Fuller 0. Dean, 31 Ala. 654;
Fletcher ». Burroughs, 10 Iowa, 557;
Morris v. Barker, 4 Harr. (Del.) 520;
Calloway ». Middleton, 2 A. K. Marsh.
(Ky.) 872; Shilling v. Carson, 27 Md.
175; Bradley v. Heath, 12 Pick. (Mass.)
163; Nelson v. Evans, 1 Dev. (N. C.)
9; Turner ». Foxall, 2 Cr. C. C. (U.S.)
824; Leister v. Smith, 2 Root (Conn.),
24; Galloway v. Courtney, 10 Rich. (8.
C.) 414; Young v. Slemons, Wright
(Ohio), 124; Williams ». Cawley, 18
Ala. 206. And it seems that, where
the words are spoken as current re-
ports, the fact that such reports were
in circulation is admissible. Young ».
Slemons, ante. So that the defend-
ant may show that he believed the
words to be true, and thus may be per-
mitted to show the grounds of his be-
lief; Cooke v. O’Brien, 2 Cr. C. C. (U.
8.) 17; as, that the plaintiff was gen-
erally reputed to be unpunctual in the
payment of his debts; Turner v. Foxall,
ante ; or that he had been told, prior
to the speaking of the words, some
other person had made statements to
him in reference to the plaintiff’s guilt
of the same offense. Galloway v.
Courtney, ante. This rule, or rather
exception to the rule, however, is op-
posed by a large line of very respecta-
ble authorities. McAlexander ». Har-
ris, 6 Mumf. (Va.) 465; Petrie v. Rose,
5 W. & S (Penn.) 364; Inman 2.
Foster, 8 Wend. (N. Y.) 602; Treat
». Browning, 4 Conn. 408; Matson o.
Buck, 5 Cow. (N. Y¥.) 499; Mapes vo.

it wasto be made. Therefore, gener-
ally, if it is to be relied on in defense
toa note or other money obligation, it
must be set up by plea or notice.
Spann v. Glass, 35 Tex. 761; Blunt
v. Williams, 27 Ark. 374; Wardlaw
». McConnell, 46 Ga. 278.
150

‘GeweraL Prinoretes or Damace.

Sec. 114. Evidence not to operate as across action. Collateral matter not ad-

missible to reduce damages.

Conflicting dicta. Chance of recov-

ering against third parties. Matter subsequent—not ground for

reducing damages in contract.
The sole object intended to be effected by allowing this species
of evidence is to arrive on the whole at the real worth of the article

Weeks, 4 Wend. (N. Y.) 659; Scott
». McKinnish, 15 Ala. 662; Matthews
». Davis, 4 Bibb (Ky.), 173; Cole v.
Perry, 8 Cow. (N. Y.) 214; Purple ov.
Horton, 18 Wend. (N. Y.) 9; Regniei
».Cabot, 7 Ill. 34; Alderman ». French,
1 Pick. (Mass.) 1; Swift v. Dickerman,
ante; Blickenstaff o. Perrin, 27 Ind.
527; Bradley v. Gibson, 9 Ala. 406;
Sawyer o. Hifert, 2 N. & M. (8. C.)
511; Paddock », Salisbury, 2 Cow. (N.
Y.) 811; Lamos v. Snell, 6 N.H. 413;
Sanders v. Johnson, 6 Blackf. (Ind.)
50; Skinner v0. Powers, 1 Wend. (N.
Y.) 451; Young v. Bennett, 5 Ill. 43;
Hancock ». Stephens, 11 Humph.
(Tenn.) 507; Fisher v. Patterson, 14
Ohio, 418; Haskins v. Lumsden, 10
Wis. 359; Bowen vo. Hall, 12 Metc.
(Mass.) 232; Beardsley v. Bridgman,
17 Iowa, 290; Stow v. Converse, 4
Conn. 17; Bailey v. Hyde, 3 Conn. 468;
Samuel v. Bond, Litt. (Ky.) Sel. Cas.
158.

Evidence in mitigation is proper,
where the general issue alone is plead,
and not where a justification is plead.
Smith v. Shumway, 2 Tyler (Vt.), 74;
Shelton v. Simmons, 12 Ala. 466; Bow-
dish v. Peckham, 1 Chip. (Vt.) 145.
But contra to the effect that, when a
justification is plead, evidence tending
to support the plea, but not sufficient
for that purpose, may go in mitigation.
See Shantly v. Miller, 1 Ind. 544. He
may by reference to the occasion and
by proof of facts and circumstances
show that he did not intend to charge
the plaintiff with the crime which,
standing alone, the words would indi-
cate; Williams v0. Cawley,18 Ala. 206;
as that at the time, in the hearing of
the same persons, he offered an expla-
nation of the charge; Winchell ».
Strong, 17 Ill. 597; but he must show
that his explanation was heard by
those who heard the charge, and the
burden is upon him to establish such
fact. Dempsey v. Paige, 4 E.D.S.
(N. Y.) 218, So he may show that the

words were spoken under great excite-
ment, in the heat of passion or under
provocation given by the plaintiff.
Powers v. Pressgroves, 38 Miss. 227;
McClintock 2. Crick, 4 Iowa, 453; Dun-
can v. Brown, 15 B, Monr. (Ky.) 186;
Ranger v. Goodrich, 17 Wis. 78. But
where the imputation isa general one,
as “he is a thief” or “she isa whore,”
etc., etc., evidence is admissible not
only of all similar offenses committed
by the plaintiff, but also of the general
reputation of the plaintiff in that re-
spect, in mitigation. Conroe». Conroe,
47 Penn. St. 198; Talmadge v. Baker,
22 Wis. 625. Where a plea in justifi-
cation is filed, evidence tending to sup-
port it, although not sufficient for that
purpose, may nevertheless go in miti-
gation of damages. But it must be
evidence that tends to support the plea
and that tends to disprove malice.
Shoulty », Miller, 1 Ind. 544; More-
head v. Jones, 2 B. Monr. (Ky.) 210;
Kennedy ». Holborn, 16 Wis. 457;
West v. Walker, 2 Swan (Tenn.), 32.
The rule perhaps may be elastic enough
to embrace all the cases, when the
purpose and effect of the evidence re-
garded, to wit, to disprove malice on
the proof of the defendant. In that
view it is held that evidence that tends
to prove the truth of the words, but
dees not establish their truth, but nev-
ertheless shows that the plaintiff was
not actuated by malice in making the
charge, is admissible; Minessinger 0.
Kerr, 9 Penn. St. 312; Rigden , Wol-
cott, 6G. & J, (Md) 418; Beehler o.
Steever, 2Whart. (Penn.) 313; Wilson
v. Apple, 3 Ohio, 270 ; Kennedy 2. Greg-
ory, 1 Binney (Penn.), 85; or thathe
retracted the slander, Brown 2. Brooks,
3 Ind. 518; that the plaintiff has
stated that he did not believe the de-
fendant originated the slander; Evans
% Smith, 5 Monr. (Ky.) 368; contra,
see Bailey ». Hyde, 3 Conn. 468; that
he gave the name of his informant
and spoke the words without malice;
Mrrication or Damages.

151

furnished, where the action is for the price of goods or the like ; or
the actual damage resulting in the first instance from the defendant’s

act.

This only ought to be paid for.

The admission of the evi-

dence is not allowed to operate as a cross-action for any purpose be-

Williams v. Greenwade, 3 Dana (Ky.),
432; Jarnigan v Fleming, 43 Miss. 710;
5 Am. Rep. 514; that the action was
brought against the plaintiff's inclina-
tion, at the instigation of a third per-
son, for malicious purposes, and not
for the purpose of obtaining actual re-
dress for an injury to the plaintiff's
reputation. Douglass v. Craig, 3 La.
Ann. 639. It has been held that the
fact that the defendant was drunk at
the time, so that he was not aware of
what he said, may be given in mitiga-
tion, but if the slander is often re-
peated when the defendant is sober
as well as when he is drunk, it does
not operate to mitigate that, at the
time when the particular charge was
made, he was drunk. Howell v. Howell,
10 Ired. (N. C.) 84.

If mitigating circumstances appear
upon the plaintiff's own showing, then
he must prove malice in fact or express
malice. If they do not thus appear,
the defendant may prove, under the
plea of not guilty, any facts which
repel the implication of malice, not
proving or tending to prove the truth
of the charges. In addition to the
facts and circumstances attending the
utterance of the words, he may prove,
among other things, that he was acting
from a sense of moral and legal duty;
that he bad repeated only what he
had been told by another; and that
the communication or publication was
privileged. In the repetition of a slan-
der, the repeater must,at the time, give
not only the precise words of the au-
thor, but the name of a responsible per-
son against whom the plaintiff may
have his certain cause of action. Even
then the responsibility of the defend-
ant depends upon the quo animo with
which he repeats the slander. Atkin-
son v. Patton, 1 Or. C. C. 46; Hogan
v. Brown, id. 75 ; Jarnigan v. Flem-
ing, ante. The plaintiff’s general bad
character, in respect of the offense
charged, may be shown in mitigation
of damages under the general issue,
but not particular act; Bradley v.

Gibson, 9 Ala. 406; Bowen v. Hull,
12 Metc. (Mass.) 232; Hamer 0. Mc-
Farlin, 4 Denio (N.Y.), 509; that the
plaintiff committed the crime charged
and was pardoned therefor; Baum v.
Clause, 5 Hill (N. Y.), 196; or any
facts and circumstances that tend to
rebut the presumption of malice.
Hutchinson v. Wheeler, 35 Vt. 330;
Kennedy v. Dear, 6 Port. (Ala.) 90;
Stees v. Kemble, 27 Penn. St. 112.
Under the general issue the defendant
cannot give in evidence matter which
might be pleaded in bar, nor can he
give evidence of any other crime than -
the one charged, either in justification
or mitigation. Randall v. Holsen-
bake, 3 Hill (S. C.), 175; Andrews v.
Vanduzer, 11 Johns. (N. Y.) 38. The
truth cannot be given in evidence
under the general issue ; Bodwell v.
Swan, 3 Pick. (Mass.) 376; Barns v.
Webb, 1 Tyler (Vt.),17; Knight v.
Foster, 39 N. H. 576; Douge v.
Pearce, 18 Ala. 127; Taylor v. Robin-
son, 29 Me. 323; Henson v. Veatch, 1
Blackf. (Ind.) 369; Waggstaff v. Ash-
ton, 1 Harr. (Del.) 503; Shirley v.
Keathy, 4 Cold. (Tenn.) 29; Else v.
Ferris, Anth. (N. Y.) N. P. 36; Sny-
der v. Andrews, 6 Barb. (N. Y.) 43;
Eagan v. Gantt, 1 McMull. (8. C.)
468 ; Brickett v. Davis, 21 Pick. (Mass.)
404; Updegrove v. Zimmermann, 13
Penn. St. 619; or- any thing that
amounts to a justification. Treat v.
Browning, 4 Conn. 408. He may,
however, show that he was insane
when the words were spoken either
in excuse or mitigation, according to
the circumstances. Yeates v. Reed,
4 Blackf. (Ind.) 463. In Snyder v.
Andrews, 6 Barb. (N. Y.) 43, the
court said: ‘No question is better
settled than that in a civil action for
a libel or verbal slander, the truth
cannot be given in evidence as a de-
fense, unless notice thereof is given
with the general issue, or the matter
is specially pleaded. The plea or
notice of justification must be framed
with the same degree of certainty and
152

GeweraL Princrtes or Damaae.

yond this. Therefore in an action for the price of a ship, which was
not built according to specification, the defendant might show how
much less it was worth in consequence of the breach of contract ;
but he could not show damage resulting from this breach, and the

precision as are requisite in an indict-
ment for the crime imputed. Mc-
Pherson v. Daniels, 10 B. & C. 263; 1
Starkie on Sland. 476; Underwood v.
Parks, 2Str. 1200; Bul. N. P. 9; Smith
», Richardson, Willes, 20;5B. G&A.
646; 2 Phil. on Hy. 249; 2 Starkie on
Ev. 470, 471; 2 Starkie on Sland. 87.
The foregoing are English authorities,
but the same doctrine has been held
here, as far back as our reports ex-
tend, without a single exception. See
13 Johns. 477; 14 id. 283; Root v.
King, 7 Cowen, 632; Anthon’s N. P.
+25, n. e.;8 Wend. 576; 19 id. 487.
The notice does not profess to be in
bar of the action. Every fact it dis-
closes was admissible under the gen-
eralissue. It has always been com-
petent, under that issue, to give any
thing, in evidence in mitigation,
which does not tend to a justification,
and which falls short of it. Gilman
». Lowell, 8 Wend. 573; Purple v.
Norton, 13 id. 9; Cooper v. Barber,
24 id. 105,108. Under the Code, it
seems, a different rule will prevail;
and matters of mitigation as well as
of justification are put upon the same
footing, and must be set up in the de-
fendant’s answer. Code of Procedure,
§§ 142, 144. But this cause was com-
menced and tried before the Code of
Procedure was enacted.” In New
York under the Code matter in justi-
fication and mitigation are specially
plead. But if the matter is set up in
mitigation, it must be so stated in the
auswer; Fry v. Bennett, 5 Sandf. (N.
Y.) 54; Ayres v. Covill, 18 Barb. (N.
Y.) 260; Matthews v. Beach, 5 Sandf.
(N. Y.) 264; and only those facts
that go to excuse or disprove malice
can be set up; Bush v. Prosser, 11 N.
Y. 347; Bishey » Shaw, 12 id. 67;
Hager v. Tibbitts, 2 Abb. Pr. (N.8.)
97; Taylor v. Church, 8 N. Y. 452;
and an answer setting up mitigating
circumstances alone is bad, they must
be set forth with a general denial,
and, unless specially stated to be in
mitigation, the plaintiff may treat

them as in bar of the action and may
demur, or move to strike out; Fry v.
Bennett, ante; Brown v. Orvis, 6
How. (N. Y.) 376; and matters in
mitigation may be set up with matters
in justification; Howard v. Raymond,
11 Abb, Pr. (N. Y.) 155; but matter
set up in mitigation cannot be offered
in justification. Baker 0. Wilkins, 3
Barb. (N. Y.) 220.

Former controversies between the
parties cannot be set up in mitigation
as ground of provocation. In order
to amount to a provocation there must
be natural connection between the
speaking of the words and the provo-
cation, both as to cause and time;
Lister v. Wright, 2 Hill (N. Y.), 320;
Underhill v. Taylor, 2 Barb. (N. Y.)
348; but a receiver in chancery is per-
sonally responsible for libel published
in a paper in his custody as a receiver.
Where a printing press and newspaper
establishment were assigned to a per-
son merely as security for a debt, and
the press-remained in the sole posses-
sion and management of the assignor,
the ownership of the assignee is not
such as to render him liable to an ac-
tion, as proprietor, for a libelous pub-
lication. Andres v. Wells, 7 Johns.
(N. Y.) 260; Marten v. Van Schaick,
4 Paige’s Ch. (N. Y.) 479; Huff 2.
Bennett, 6 N. Y. 337. An action
for libel lies against the proprietor of
a paper edited by another, though the
publication was made without the
knowledge of such proprietor, and
notwithstanding the libel is accom-
panied with the name of the author.
Dole v. Lyon, 10 Johns. 447; Andres
v. Wells, ante. The publication of
rumors is not justified by the fact
that such rumors existed. But such
fact is admissible in mitigation. Skin-
ner v. Powers, 1 Wend. (N. Y.) 451.
It is no justification that the defend-
ant signed the libelous paper as chair-
man of a public meeting of citizens,
convened for the purpose of deciding
on a proper candidate for the office of
governor, at an approaching election,
Mirigation or Damacn.

153

cost of necessary repairs in consequence. This required a separate
action.!. And so in an action by a broker for money paid for shares,
the defendant was not allowed to set up a conversion of the shares

by the broker.’

breach of contract by plaintiff after action brought.

and that it was published by order of
such meeting. Lewis v. Few, 5
Johns. (N. Y.) 1. In an action of
libel, charging the plaintiff, who had
been a minister from France to the
United States, with treacherously be-
traying the secrets of his government,
proof that he had published his in-
structions is not a justification; for a
public minister may,if he deems it
necessary, publish his instructions.
Genet v. Mitchell, 7 Johns. (N. Y.)
120. And whether the plaintiff had
traitorously made public bis instruc-
tions is a mixed question, to be sub-
mitted to the jury under the advice of
the court; and the criminality of the
act altogether depends upon the in-
tent with which it was-done. Per
Kent, ©. J., ib. In an action for
libel, the defendant pleaded puis dar-
rein continuance, a satisfied judgment
recovered by the plaintiff, in the same
cause of action against a partner of
the defendant ; held that the plea was
good. Thomas v. Rumsey, 6 Johns.
(N. Y.) 26. The plaintiff, in an
action for a libel, to which the gen-
eral issue is pleaded, with notice of
a justification, may abandon, at the
trial ore tenus, any portion of the libel-
ous matter alleged in the declaration,
and proceed upon the residue; after
which, the defendant will not be per-
mitted to justify the portion so aban-
doned. Stow »v. Converse, 4 Conn,
17. The public character of the
plaintiff, as an officer of government,
and the evil example of libels, are con-
siderations with the jury for increas-
ing damages. Tillotson. Cheetham,
3 Johns. 56; the general bad charac-
ter of the plaintiff may be given in
evidence, by way of mitigating the
damages. Buford ». M’Luny, 1 N.
& M. (8. C.) 268. The defendant

* Mondel v. Steel, 8 M. & W. 858.
Now it could be done by a counter-
claim.

20

*Nor can he show quite an independent

*
Thus in Lee!

may show, in mitigation of damages,
that the plaintiff is a common libeler;
but he must do this in the same way
as general reputation is proved; pub-
lications by the plaintiff cannot be re-
sorted to for that purpose. Maynard
v. Beardsley, 7 Wend. (N. Y.) 560.
Where A published a libel, taken from
a paper published by B, as an extract
from a paper published by C, it was
held, in an action by C against A,
that the testimony of D, that he had
heard A, before he published the libel,
ask E whether he had not seen it in
the paper of C, and that he an-
swered that ‘‘he had,” was imad-
missible in mitigation of damages,
but that E himself should be pro-
duced, if his declarations were
proper evidence. Coleman vy. South-
wick, 9 Johns. (N. Y.) 45. In an
action for a libel, in which the plain-
tiff was charged with being “a de-
graded scoundrel, liar and black-
guard,” it was held that the defend-
ant might be allowed to prove, under
the general issue, in mitigation of
damages, that the plaintiff, shortly
prior to the publication of said libel,
charged the defendant with false
swearing in a cause in which he was
awitness, Davis v. Griffith, 4 Gill &
Johns. (Md.) 342. The defendant
in an action for libel cannot give in
evidence, in mitigation of damages, a
distinct and independent libel on
himself published by the plaintiff.
Child v. Homer, 13 Pick. (Mass.)
503. See Walker v. Winn, 8 Mass.
248. The defendant is not allowed
to give, in mitigation of damages, a
former recovery of damages against
him in favor of the same plaintiff, in
another action for a libel, which
formed a series of numbers published
in the same gazette, and containing

2 Francis v. Baker, 10 A. & E.
642,
154

GENERAL Principles or Damage.

an action against the defendant for not paying for goods at the
period agreed on, he could not show in reduction of damages, that
the plaintiff, after action brought, had refused to deliver the goods,
such delivery not being a condition precedent to his obligation to

the libelous words charged in the
second suit. Tillotson v. Cheetham,
3 Johns. (N. Y.) 56. In an action
for libel, whether the defendant can
give in evidence, under the general
issue, the general character of the
plaintiff, in mitigation of damages,
guere. Foot v. Tracy, 1 Johns. (N.
Y.) 46.

In an action against husband and
wife for a slander uttered by the wife,
evidence of a retraction of the slander
by the husband is not admissible in
mitigation. This question was raised
and decided in Mousler v. Harding,
33 Ind. 176, and ia passing upon the
question Exurott, J., said: ‘The
husband is properly joined as a party,
and is responsible for the damages
that may be recovered, but his liabil-
ity is simply an incident of the mar-
riage relation, and not for any act of
his own; and if he should die pend-
ing the suit, the action would survive
against the wife alone, and not
against his personal representatives.
The facts to which the husband
offered to testify were in mitigation of
the damages, and relate exclusively to
the wife and her conduct, except the
fact that the husband caused the wife
to go to the person to whom she had
uttered the slanderous words and re-
tract the same; but this act of the
husband, however meritorious, could
not go in mitigation of the damages,
and hence, was not proper evidence.
Yeates v. Reed, 4 Blackf. 463. If the
words were spoken in the heat of pas-
sion, and the wife afterward went to
the person to whom they were uttered
and retracted the slanderous charge,
such facts would be proper evidence
for the wife in mitigation of damages.
All the proper facts offered to be
proved by the husband, in mitigation
of damages, were direct evidence for
the wife, and not for the husband,
except as they might incidentally and
unavoidably tend to release his lia-
bility resulting from the marital rela-
tion. The wife, in my opinion, has

the right to testify, because the cause
of action is directly against her, and
for her individual act, and she would,
therefore, be testifying directly for
herself; and the fact that her evidence
might incidentally and unavoidably
tend to benefit the husband, would be
no reason for excluding it. But the
husband’s position is just the reverse;
his evidence would be directly for the
wife, and only incidentally for him-
self, and for that reason would, in my
opinion, be incompetent.” Formerly,
in New York, the truth of the charge
nor facts tending to prove the truth of
it could not be given in evidence in
mitigation; but under section 165 of
the Code of Procedure, providing
that in actions of libel and slander
defendant may set up both the truth
of the charge and mitigating circum-
stances, it is held that the defendant
may prove, in mitigation of damages,
facts which tend to disprove malice,
although they do tend to prove the
truth of the charge. And he may do
this without having alleged the truth
of the charge in his answer; Bush 2.
Prosser, 11 N. Y. 347; Bisbey v. Shaw,
12 id. 67; overruling Meyer v.
Schultz, 4 Sandf. 664; and Ayres v.
Covill, 18 Barb. 260. And all other
cases holding a contrary doctrine

The rule, however, that where a de-
famatory charge is made in general
terms, it can only be justified by a
specification of the facts relied on re-
mains unchanged by the Code.
Ormsby v. Douglass, 5 Duer (N. Y.),
665; Fry v. Bennett, 5 Sandf. (N.
Y.) 54,

The general bad reputation of the
plaintiff in the community may be
given in evidence in mitigation
of damages, but specific acts, or
rumors derogatory to his character,
cannot be shown. But if the plain-
tiff has a specific general reputa-
tion in regard to conduct similar to
that charged by the words spoken of
him, it may be shown, and it must
relate to his general reputation, and
Mitigation or Damage.

155

pay.’ Still less can matter completely collateral, and merely res
inter altos acta, be so used. Hence where the defendant was sued
for injuring the plaintifi’s ship, or the plaintiff himself by negli-
gence, he could not obtain a reduction of damages on the ground

that the plaintiff had recovered from the insurers.’

not to mere rumors or suspicions.
Leonard v. Allen, 11 Cush. (Mass.)
241; Stone ». Varney, 7 Metc. (Mass.)
86; Chubb a. Gsell, 34 Penn. St. 114;
Wright ». Schreeder, 2 Curtis (U..8.),
548; Mayer v. Mayer, 49 Penn. St.
210; Young v. Bennett, 5 Ill. 43;
Pope v. Welsh, 18 Ala. 631; Seymour
v. Merrills, 1 Root (Conn.), 459; Waters
v. Jones, 3 Port. (Ala.) 442; Burton 2.
March, 6 Jones (N. C.), 409; R—— ».
W. , 21 Wis. 50; Lincoln ». Chris-
man, 10 Leigh (Va.), 338; Lamberrt v.
Pharis, 3 Head (Tenn.), 622; Sever-
ance v. Hilton, 24 N. H. 147; Alder-
man o. French, 1 Pick. (Mass.) 1;
Fitzgerald v. Stewart, 53 Penn. St.
343; Lisk » Whitfield, 2 Ohio St.
222; Dewit v. Greenfield, 5 Ohio, 225.
But the plaintiff cannot prove his
general good character, unless it is
attacked ; Wright v. Schreeder, 2 Curt.
(U. S) 548; Springstein o. Field,
Anth. (N. Y.) 252; Tibbs v. Brown, 2
Grant’s Cas. (Penn.) 39; Tler v.
Cromer, Wright (Ohio), 441; Rhodes
v. Ijames, 7 Ala. 728; but if the de-
fendant sets up the truth of the
charge in defense, the plaintiff may
introduce evidence as to his general
good character; Smith v. Lovelace, 1
Duv. (Ky.) 215; Harding v. Brooks,
ante; Byrket v. Monohon, 7 Blackf.
(Ind.) 83; and the evidence must
relate to his reputation before the
speaking of the words, and not after,
and this is so, even though it is ap-
parent that the subsequent reputation
is not the result of the slander or libel.
_Douglass v. Tousey, 2 Wend. (N. Y.)
352. In several of the States, charac-
ter is treated as in issue under the
general issue, and the plaintiff is per-
mitted to show it, and, from the very
nature of the action, and upon the
question of damages, there can be no

 

1 Bartlett ». Holmes, 13 C. B. 630;
27 L. J. C. P. 182.
2? Yates v. Whyte, 4 B. N.C. 272;

This would be

good reason why such evidence is not
material. It is true that the law pre-
sumes that a man’s character and
reputation is good until the contrary
is shown, but the charge itself, being
an attack upon the plaintifi’s charac-
ter and the damages being given as a
compensation for the injury thereto,
there is no good reason why the plain-
tiff should not be permitted to show
that his reputation was in fact good.
Sayre v. Sayre, 25 N. J. 235; Bennett
vo. Hyde, 6 Conn. 24; Romayne v.
Duane, 3 Wash. (U. 8.) 246; Wil-
liams v. Haig, 3 Rich. (8. C.) 362;
Lamberrt ». Pharis, 3 Head (Tenn.),
622; Shroyer 2, Miller, 3 W. Va. 158;
Sample v. Wynn, Busb. (N. C.), 319.
General reports cannot be admitted,
referring to specific acts or traits,
either for or against the plaintiff;
Luther v. Skeen, 8 Jones (N. C.), 356;
nor any specific acts; R v. M——,
21 Wis. 50; Fitzgerald v. Stewart, 53
Penn. St. 343; Vick ». Whitfield,
ante. The plaintiff's general bad chaf-
acter may be shown, not as a defense
or bar to the action, but rather asa
means of determining the actual in-
jury inflicted upon the plaintiff by
the words charged. The rule is pre-
dicated upon the principle, that a
man, who has not taken care to pre-
serve his general reputation from
blemish, cannot be injured as much
by slanderous words or libelous publi-
cations, as one whose general charac-
teris good. The law presumes that
every person has preserved his gen-
eral reputation unsullied, hence, un-
less proved otherwise, damages are
assessed upon that presumption, and
hence it is that evidence of general
good character is not admissible, un-
less attacked by the defendant.
Adams »v. Smith, 58 Ill. 417.

 

Bradburn v, G. W. R. Y. Co., L. R.,
10 Ex. 1; 44 L. J. Ex. 9.
156 GenerRaL Principtes or Damaae.

to allow the wrong-doer to pay nothing, and take all the benefit of a
policy of insurance without paying the premium. On the same
principle it would be no defense in an action against an annuitant,
or any other debtor, that the value of the annuity had been recov-
ered against the plaintiff’s attorney in an action for negligence in
its negotiation, or that the sheriff had been forced to pay the debt
in an action for an escape.! And where a number of plaintiffs sued
for damages resulting from the delaying of their ship, it was held
to be no ground for reducing the damages, that some of these plain-
tiffs had benefited, by getting an increase of passengers in another
ship. And the court said the result would have been the same if
there had been only one plaintiff, who was the owner of both
ships.”

There are dicta of two eminent judges which seem to contradict
this rule. Trover was brought against the purchasers of goods
which had ‘been wrongfully sold by the master of the ship. The
purchasers pleaded a former recovery by the plaintiffs against the
shipowners. It appeared that the latter, in the action against them,
had suffered a verdict to the value of the ship and freight under 53
G. III, ¢. 159, which was far less than the value of the goods sold.
Bayzey, J., said: “Independently of the statute, the jury were not
bound to make the full value of the goods the measure of the dam-
[* 93 ] ages in the former action ; *they might reasonably give small

damages on the ground that an action would lie against the
purchasers.” And Hotroyp, J., concurred, saying: “The prob-
ability of a recovery in an action against this defendant might keep
down the damages on the count of trover. In an action against a
sheriff for an escape, small damages are often given on the ground
that the debt is not extinguished ; and the whole amount may after-
ward be recovered, notwithstanding the recovery against the
sheriff” * I apprehend, however, with great submission that these
dicta cannot be relied on. They were quite unnecessary to the
decision. That relating to the sheriff is clearly contrary to modern
decisions ; for it has been expressly ruled that the true measure of
damage is the value of the custody of the debtor at the time of the

' Hunter ». King, 4 B. & A. 209. 3 Morris 0. Robinson, 8 B, & C. 196,

* Jebsen v. H. & W. India Dock Co., 205, 206.

L. R.,10C. P. 300; 44 L. J. C. P.
181.
Mrrieation or Damagn. 157

escape, and no deduction ought to be made on account of any thing
which the plaintiff might have obtained by diligence after the
escape.’ On principle, too, the doctrine seems equally unsustain-
able. Every man must pay for the damage caused by his own act.
How can this damage be lessened by the fact that the plaintiff might
have sued others if he had chosen? The law says, you may exact
satisfaction from any one of the parties who have injured you.
What right have the jury to say, you shall only get satisfaction by
suing all? In cases of tort the law says, damage shall not be ap-
portioned among the wrong-doers.”_ How can the jury say that they
shall? Finally, could any judge leave to the jury, as relevant evi-
dence, facts going to show the collateral liability of other parties ?
If so, must he not also admit evidence to show that they were not
liable, and if liable not solvent, and if solvent out of the jurisdic-
tion? The case seems almost to come to a reductio ad absurdum.

Two cases which are frequently cited seem to be reducible to the
same rule as to the inadmissibility, in reduction of damages, of ex-
trinsic matter arising subsequent to the cause of action. In one it
appeared that the bankrupt had deposited with the defendants, his
bankers, a sum of money for the *specific purpose of meeting
some bills. Ile was at the time indebted to them in a greater
amount than the sum deposited. Instead of applying the money as
directed, the defendants placed it to his credit with themselves ; the
bills were dishonored at maturity, and the action was brought by the
assignees in bankruptcy, for breach of the agreement, to recover the
money. It was held that they might recover it all; that as soon as
the defendants refused to apply the money to the use directed, they
were liable to be sued for it in an action for money had and re-
ceived; that in such an action the fact of his being indebted to
them would only be material as entitling them to a set-off ; and that
as they could not avail themselves of this in answer to an action of
special assumpsit, it could not be used in reduction of damages.” In
the other case, the bankrupt had given the defendant a bill, drawn
by himself for 6002., which the defendant agreed to discount, re-
taining 1002. and the discount. He never paid the bankrupt any

[ *94 |

! Arden v. Goodacre, 11 C. B. 371; ? Merrywheather v. Nixan, 8 T.R.
20 L. J.C. P. 184. See post, p.411. 186. .
3 Hill o. Smith, 12 M. & W. 618.
158 GeneraL Prinorptes or Damace.

thing. The action was, as in the former instance, by the assignees
in bankruptcy, for breach of the agreement. The jury gave a ver-
dict for 4952., being the amount of the bill, minus the 100/. and dis-
count at 102. per cent. This was held to be correct, although the
bill had become worthless in consequence of the bankruptcy. Pot-
Loox, OC. B., said: “If this had been an action of trover for the
bill, no doubt it would have been altogether a question for the jury
as tothe amount of damages. So, also, if it had been an accommo-
dation bill, or the bankrupt’s own bill. But this is not a case of
-trover, but of breach of contract. The defendant promised to
deliver to the bankrupt the amount of the bill, minus 1002. and
discount. The bankrupt would have to receive that sum, and his
assignees are entitled to recover the same amount which he would
have been entitled to receive, had he continued solvent, by reason
of the breach of contract.!

Sec. 115. Must not conflict with laws of evidence. Attorney’s bill and freight
are exceptions to general rule.

It need hardly be stated that evidence can never be admitted for
this purpose which contradicts any established principle of law.
For instance, where defendant by writing agreed to grant a good
[#95] and valid lease of premises to the plaintiff, in a suit for *breach

of this agreement, parol evidence that the plaintiff knew that
a good title could not be made out was properly rejected.* Nor is
the rule extended to actions for the amount of an attorney’s bill,’
unless no benefit whatever has been derived from it; nor to actions
for freight, although the defendant had been put to considerable
expense in consequence of an unauthorized deviation;* or even
where the goods had been injured by bad stowage to an extent much
beyond the amount of the freight." These two exceptions seem not
to rest upon any principle whatever, but they have been recognized
as existing exceptions by the court of exchequer.’ Where, how-
ever, some particular items in an attorney’s bill refer to one trans-
action, and can be shown to have been uselessly incurred, they may
be resisted on this ground.’

1 Alder v. Keighley, 15 M. & W. * Bornmann v. Tooke, 1 Camp. 877.

117, 119. ’Sheels v. Davies, 5 Camp. 119.
® Robinson v. Harman, 1 Ex. 850. 68M. & W. 871.

* Templer v. M’Lachlan, 2 B. & P. * Hill v, Featherstonhaugh, 7 Bing.
N. R. 136. 569; Shaw v. Arden, 9 Bing. 287.
Repvuction or Damaass. 159

Sec. 116. Hffect of paying money into court.

There is one case in which Lord Extensoroven held at nisé
prius, that where goods had been sold to defendant by sample, at a
stipulated price, and an action of indebitatus asswmpsit was
brought against him, he could not, after paying money into court,
insist on any defect in the goods.'! It is submitted, however, that
this decision is not law. It could only be founded on the idea that
by paying money into court the defendant admitted his liability
upon the particular contract which the plaintiff meant to set up.
But it is now settled, after some conflicting decisions, “that this
plea amounts to no acknowledgment whatever by the defendant be-
yond this, that by force of some contract he is bound to pay the
plaintiff something on the count for goods sold. But the plaintiff
cannot apply that admission to any particular contract which he may
wish to select, any more than the defendant.’’* In the case re-
ferred to the defendant was clearly liable on a quantum meruit, as
he had kept the goods. He was not liable *on the special [#96 ]
contract, as it had been broken, and his plea did not amount
to any confession that he was still bound by it.

Sec. 117. General rules as to admissibility of evidence in reduction of damages.
Having now cleared away the cases in which evidence is not ad-..
missible in reduction of damages, we may proceed to point out
those in which it is. Upon this subject the law has undergone con-
siderable change. Formerly, where the action was for the agreed
price of a specific chattel, sold with a warranty, or of work which
was to be performed according to a contract, the defendant was
never allowed to give its inferiority in evidence, but was forced to
pay the stipulated amount, and re-imburse himself by a cross-action.
But it is now settled that whether the action is for the price of a
specific chattel,’ or of unascertained goods," sold with a warranty,
or is bronght on a special contract to pay for goods °* or work ° at
acertain price; or upon a quantum meruit, for work and labor
done, and materials found; or for the value of the plaintiff's ser-

* Leggett v. Cooper, 2 Stark. 103. 5 Cousins v. Paddon, 2 C. M. &R.

* Per AupreRson, B., Kingham ». 547; Milner v. Tucker, 1C. & P. 15.
Robins, 5 M. & W. 94, 102. 6 Chapel v. Hickes, 2 C. & M. 214.

® Street v. Blay, 2B. & Ad. 456; 7Besten v. Butter, 7 Hast, 479;
Parsons v. Sexton, 4 C. B. 899. Farnsworth v, Garrard, 1 Camp. 38.

4 Poulton v, Lattimore, 9B. & C.
259.
160 General Principtes ofr Damage.

vices;1 the defendant may show the actual value of the goods,
work, services, etc., and reduce the claim accordingly. So, when a
plaintiff contracts for a fixed sum to do work and find materials,
and part of the work is afterward done by the employer,’ or part of
the materials are supplied by him, and used by the plaintiff, he is
entitled to a deduction to this extent without pleading set-off.’ If
it is part of the contract between a servant and his master that the
former is to pay out of his wages the value of his master’s goods,
lost by his negligence, this amounts to an agreement that the wages
are to be paid only after deducting the value of the things lost.
Such a state of things may be given in evidence under the general
issue, and does not require a plea of set-off.". And so where, by the
[#97] custom of the hat trade, the amount of injury sustained by

the hats in dyeing was deducted from the dyer’s charges
evidence of injury from this cause was admitted in reduction of
damages.”

Sec. 118. Principle upon which reduction to be made.

Assuming then that in such cases a reduction might be made, a
further question arises as to the principle upon which such a reduc-
tion should proceed. In the great majority of cases the simple rule
has been to allow for the article as much as the jury should find it
was worth. But there are two cases in which a different principle
was adopted. The one was a contract for supplying a chapel with
hot air;° the other was for slating a house.” In both cases the work
had not been done according to contract, and it was laid down by
Trvpat, OC. J., and Parxs, B., that the measure of reduction should
be the necessary cost of making the work conform to the contract.
It is evident that this rule differs very much from the former one.
A thing may be very valuable in itself, but if it is to be altered into
something different, the cost of doing so may absorb its whole
price. Which rule is correct? It is suggested that both rules may
be so, according to the cases to which they are applied. One im-
portant element in this inquiry will be, could the subject-matter of

' Denew v. Daverell, 3 Camp. 451; v. Bristow, 4 Camp. 134; semble, Cle-

Baillie v. Kell, 4 Bing. N. C. 638. worth v. Pickford, 7M. & W. 3814.
* Turner v. Diaper, 2 M. & G, 241. ° Bamford v. Harris, 1 Stark. 343.
Newton v. Forster, 12 M. & W. § Cutler 0. Close, 5 C. & P. 337.
772. 7 Thornton v. Place, 1 M. & Rob.

4 Per Lord ExvuenRoRovGH, Le Loir 218.
Repvotion or DamaaeEs. 161

the contract have been returned or not? If it could, then, as the
defendant has kept it of his own free will, he ought to pay for it as
much as the plaintiff could have sold it for, if he had taken it back ;
that is, its real value. But there are two cases in which the defend-
ant cannot return it. The one is where the sale is of a specific chat-
tel, upon which the owner has had an opportunity of exercising his
own judgment, and which is brought with a warranty.'! The other,
where labor has been expended upon the defendant’s own property,
as, for instance, his materials or his land. In the latter case the
. thing done may in itself possess very great intrinsic value, as, for
instance, if a tailor should cut cloth into a coat which would fit any
one but the owner, or a builder should erect a coach-house
*where he had been directed to make a stable. But it is clear

ar [*98 ]
that the thing would in neither case be of any value to the
owner, till it was altered into what he wanted. The cost of altering
it would be the only fair measure of reduction. It will be observed
that both the cases cited come under this latter head.

Sec. 119. Sale of specific chattel with warranty.

The former case, viz., the sale of a specific chattel with warranty,
would admit of different considerations. It might be utterly impos-
sible to alter it, as, for instance, to change a hack into a hunter.
The question would then be, what was it worth to the purchaser as
it was. This would depend upon what he could get for it, and so
would come under the former rule as to real value. On the other
hand it might be capable of alteration at a very exorbitant cost, as,
for instance, a defective machine. Ought the purchaser to sell it
for what it would fetch, supposing it to be useless to him in its
present condition, or may he alter it to suit his requirements? This
would probably depend upon the facts of each case. If he could
without very great loss and inconvenience procure another, it would
perhaps be held that he ought to do so, and that great expense
incurred in alterations could not be treated as the necessary result
of the plaintiff's breach of warranty, when by a smaller outlay he
could have obtained a perfect article. But it might be impossible
to procure another, or the cost and delay might be so great as to

1 Parsons v. Sexton, 4 O. B. 899; Dawson 9. Collis, 10 C. B, 523; 20 L.
J.C. P. 116.

21
162 GeneraL Princretes of Damaae.

warrant him in altering it at a very great expense; if so, it might
fairly be held that the exception laid down in the above cases ap-
plied, and that the measure of reduction was the cost of alteration.
It must be owned, however, that such a case would hover upon the
limits of the rule laid down against reduction of damages in Mondel
v. Steel.

Sec. 120. Evidence in mitigation of apparent injury inflicted by defendant.
Indemnity. Trover. Trespass. Crim. con. Breach of promise
of marriage.

In the cases hitherto under discussion the plaintiff has been claim-
ing payment on account of something done by him for the defend-
. ant, and the evidence has gone to show that the defendant had not
received all the benefit.for which he had bargained. On exactly
the same principle, where the action is to recover damage for some
loss arising from the defendant’s acts, evidence is admissible to show
[*99] that the injury is not so *great as would at first appear.’ For
instance, where the action was for breach of an agreement to
build upon land, the defendant was allowed to show that the plain-
tiff had re-entered upon it under the covenant, and let it to another
tenant.’ And where the plaintiff has given the defendant an in-
demnity against the very demand for which he is suing, such indem-
nity is a bar to the action, if it goes to the entire claim,* and of
course would be admissible in reduction of damages if it only went
to part. So in trover, though the cause of action is complete upon
proof of conversion, still if the defendant after using the goods has
returned them,’ or has paid over part of the proceeds to the plaintiff,
this will go in reduction of damages. And in trespass against an
executor de son tort, payments made by him in a due course of ad-
ministration and which go to exonerate the estate, shall be recouped
in damages.”

1 Ante, p. 91. amount. The measure of damages
*TIn Workman v. G. N. Ry. Co., was held to be the difference only
82 L. J. Q. B. 279, in consequence of between the two amounts.
the defendants’ embankment the flood- 3 Oldershaw v. Holt, 12 A. & EH.
waters of a river were pent back and 590.
flowed over the plaintiff's land. Had * Connop v. Levy, 11 Q. B. 769
the embankment not been constructed 5 Cook v. Hartle, 8C. & P. 568.
the waters would have flowed a differ- ® Burn v. Morris, 20. &M. 579.
ent way, but would have reached the 7 Mountford v. Gibson, 4 Hast, 441.
land and done damage to a lesser :
Repvction or Damages. 163

For the same reason, formerly, in actions of crim. con., any evi-
dence which went to show that the husband had suffered a compara-
tively trifling loss in respect of his wife, either on account of her
own worthlessness, previous to the defendant’s acquaintance with
her,’ or his own want of affection for her,’ or the slight amount of
intercourse that subsisted between them,* was admitted to reduce
the damages; so in actions for breach of promise of marriage, proof
may be given that the plaintiff was utterly unfit to appreciate the
person to whom he had engaged himself,‘ or that the defendant’s
family disapproved of the match, for this would naturally diminish
the happiness to be expected from it.’

Sec. 121. Injury increased by plaintiff's conduct.

*So where the defendant has been in the wrong, but the
injury resulting from his conduct has been increased by that
of the plaintiff; as, for instance, in an action against the sheriff for
an escape, if he has done any thing to aggravate the loss occasioned
by the defendant’s neglect, or has prevented him from retaking the
debtor, the damage would be materially affected by such conduct.°

[#100]

Sec. 122. False imprisonment. Libel. Seduction.

Of course in all cases where motive may be ground of aggrava-
tion, evidence on this score will also be admissible in reduction of
damages. Hence in an action for false imprisonment, evidence may
be given of a yeasonable suspicion that the plaintiff had been guilty
of felony, without any attempt at setting up a justification.” And
if the plaintiff was given into custody for an offense not justifying
an arrest, evidence may be given of the offense.’ It is the nature
of an apology for the defendant’s conduct." And so, in cases of
libel, the defendant may give any evidence in reduction of damages

1 Smith v. Allison, B. N. P. 27.

? Duberley ». Gunning, 4 T. R. 655;
Bromley v. Wallace, 4 Esp. 237.

% Calcraft v. Lord Harborough, 4 C.
& P. 499.

4 Leeds v. Cook, 4 Esp. 256.

° Irving » Greenwood, 1 C. & P.
350.

But in Piper o. Kingsbury, 48 Vt.
480, the court held that in assessing
damages for a breach of promise of
marriage, it is not a legitimate sub-
ject for the jury, to consider the con-

sequences to the plaintiff had she
married the defendant and thereby
formed an.unhappy alliance, rendered
snch by the want of that love and af-
fection that a husband should enter-
tain for his wife.

6 Arden ». Goodacre, 11-C. B, 371,
377; 20 L.:J. C. P. 184.

7 Chinn ». Morris, 2C. & P. 361. °

8 Linford ». Lake, 3 H. & N. 276;
27 L. J. Ex, 334.

9 Per Lord ABINGER,: Warwick o.
Foulkes, 12 M. & W. 507,
164

GENERAL PrincreLes or DamaceE.

which goes to prove the absence of malice,' or he may show pre-
vious provocation received from the plaintiff? And in actions of
seduction, the offense may be deprived of its wanton and heartless
aspect by showing the loose character of the female.’

1 Pearson v. Lemaitre, 5 M. & G.
700.

2 May v. Brown, 8B. &C. 113.

> Bamfield v. Massey, 1 Campb.
460; Dodd »v. Norris, 3 id. 519.

Evidence of acts of unchastity on
the part of the woman seduced, two
months subsequent to the date of the
offense charged in the indictment, is
not admissible in behalf of the pris-
oner; Mann o. State, 34 Ga. 1; and it
seems that it is never admissible, un-
less known to the defendant before
the alleged seduction. Thus, in Lea
v. Henderson, 1 Cold. (Tenn.) 146, the
court held that, in an action for seduc-
tion, the fact that another person had
had intercourse with the person se-
duced before her alleged seduction by
the defendant, when this had remained
unknown to the defendant as well as
to the public at the time of the seduc-
tion, is not to be considered by the
jury in mitigation of damages.

In another case, it was held not suf-
ficient to defeat the plaintiff's right of
action, to prove that the daughter had
had illicit intercourse with two other
persons about the same time. White
v. Nellis, 31 N. Y. 405.

Where there is a question whether
the defendant did seduce the plain-
tiff’s daughter, as charged, raised by
the contradiction between the testi-
mony of the daughter and the defend-
ant, evidence of her previous unchaste
conduct is admissible as tending to
corroborate the defendant’s evidence,
as well as in mitigation of damages.
So, where evidence has been intro-
duced by the plaintiff tending to show
seduction of his daughter, all evidence
tending to furnish data for exemplary
damages should also be received. In
such a case, the amount expended by
the plaintiff for medical and lying-in
attendance is admissible in evidence,
though, at the time the expenses were
incurred, the seduced was over twenty-
one years of age. Hogan v. Cregan, 6
Rob. (N, Y.) 188.

In an action for seduction, for loss

of services by the father, itis sufficient
if the illness of the daughter, whereby
she was unable to labor, was produced
by shame for the seduction, and would
not have occurred but for shame
caused by the exposure; and the jury,
in assessing damages, may take into
view the wounded feelings of the plain-
tiff, and not only recompense him, but
punish the defendant according to the
aggravation of the offense; and a ver-
dict in such a case not so excessive as
to indicate passion, partiality, preju-
dice or corruption on the part of the
jury, will be upheld. Knight v. Wil-
cox, 18 Barb. (N. Y.) 212.

In a Pennsylvania case, Phelin v.
Kenderdine, 20 Penn. St. 354, the court
lay down the rule as to damages,thus:
‘The plaintiff is not only entitled to
recover for loss of service, but for all
that he can feel from the nature of the
injury ;” and in the same case it was
held that evidence of a promise of
marriage on the part of the defendant
is admissible to show the nature of the
injury to the parent, and to enhance
the damages; but that the jury must
not award to the father any part of
the damages which belong to the
daughter, by reason of the breach of
contract of marriage.

In Fox ». Stevens, 18 Minn. 272, the
following instruction was held to be
accurate: ‘‘If the jury find for the
plaintiff, besides the loss of services
and the disbursements for medical
treatment and other necessary ex-
penses, they can give such additional
damages for wounded feelings, mental
suffering, and for the dishonor of the
eerie and his family, as they shall

eem from the evidence to be a rea-
sonable and just compensation there-
for, not exceeding in all the amount
claimed in the complaint.”

Where a parent sues the seducer of
his daughter for the value of her lost
services, a subsequent marriage be-
tween the seducer and seduced, and an
acquittal of the former on an indict-
ment for seduction, do not, either
Repucrion or Damages..

165

It would be easy to multiply illustrations upon all the heads just
mentioned. Those adduced, however, are guflicient to explain the
principles upon which damages may be reduced. We shall have
occasion to go more fully into the subject in discussing the different

species of actions.

alone or together, constitute a com-
plete bar to the father’s right to re-
cover, but they go to mitigate the
damages; Hichar ». Kistler, 14 Penn.
St. 282; nor that he offered to marry
her after her seduction. Ingersoll v.
Jones, 5 Barb. (N. Y.) 661.

In several of the States a promise of
marriage made before seduction is not
admissible in evidence, upon the
ground that it has no effect upon the
right or measure of recovery, and is
purely a remedy of the daughter.
Whitney o. Elmer, 60 Barb. (N. Y.)
250; Kip o Berdan, 20 N. J. Law,
339; Drish v. Davenport, 2 Stew. (Ala.)
266; Herring v. Jester, 2 Houst. (Del.)
66; Whitney v. Elmer, 60 Barb. (N.
Y.) 250. In Vermont it is held that
the plaintiff cannot, in the opening of
his case, give evidence of a promise of
marriage, made by the defendant to
the daughter. And that, if such evi-
dence were properly received, it is er-
ror for the county court to instruct the
jury that it has a tendency to prove
the fact of seduction. And that the
plaintiff cannot give evidence of the
general good character of his daughter,
and of himself and his family, in the
absence of any impeaching testimony
on the part of the defense. Nor of the
probable expense of supporting the
illegitimate child, of which his daugh-
ter had been delivered. Haynes », Sin-
clair, 23 Vt. 108.

But while the plaintiff cannot give
evidence that the defendant made her
apromise of marriage, yet he may
prove, in showing the circumstances
under which the seduction took place,
that the defendant addressed her with
honorable proposals. Brownell v, Mc-
Ewen, 5 Denio (N. Y.), 367.

The daughter or servant, although a
witness for the plaintiff, cannot be re-
quired to state whether, about the time
the child was begotten, she did not
have intercourse with other men.
Doyle v. Jessup, 29 Ill. 460. Butin a
suit in which she isa witness, the jury

Masten,

may be properly instructed to consider,
in connection with the question of her
credibility, her relation to the plaintiff,
his influence over her, her contradict-
ory statements as to who was the fa-
ther of her child, and, where force is
charged, the age and physical ability
of the defendant. Duncan », Welty,
20 Ind. 44.

Sexual intercourse between the fe-
male and the defendant must be shown,
and the question is for the jury whether
from such intercourse he is the father
of the child, or whether it produced
the injury complained of, and for
which recovery is sought. Richardson
v. Fouts, 11 Ind. 466; White v. Nellis,
31 N. Y. 405.

If the parent or master, or other
person seeking to maintain an action
for seduction, has connived at or con-
sents to the seduction, it bars the ac-
tion; Hollis v. Wells, 3 Penn. L. J.
169; Bunnell v. Greathead, 49 Barb.
(N. Y.) 106; Travis v. Barger, 24
Barb. (N. Y.) 614; Fletcher ». Ran-
dall, Anth. (N. Y.) 267; Smith v.
15 Wend. (N. Y.) 270;
or it seems, when he contributed
thereto by his misconduct; Travis v.
Barger, 24 Barb. (N. Y.) 614; Gra-
ham v. Smith, 1 Edm. Sel. Cas. (N.
Y.) 267; Seagar v. Sligerland, 2 Cai.
(N. Y.) 219; Sherwood v. Titman, 55
Penn. St. 77; as where the daughter
was permitted to ‘‘ bundle” with the
defendant, although claimed to be the
custom; Hollis v. Wells, ante; or
where he permitted a married man,
knowing him to be such, to visit his:
daughter as a suitor, and to go alone
with her to the theater, etc. Reddie
v. Scott, Peake, 240. But the fact
that the plaintiff permitted a married
man to visit his daughter as a suitor,
he not knowing that such person was
married, although he might have
ascertained the fact upon proper in-
quiry, will not be a bar to a recovery.
Richardson v. Fouts, 11 Ind. 466.
But, generally, it may be said, that
166 GeneraL Princietes or Damage.

Sec. 123. Set-off.

The law of set-off never came strictly within the scope of a work
on damages, since it was merely a cross-action, which, by means of
a statute, might be tried at the same time with the principal suit.’
Still it was a means by which the plaintiff's claim might be cut down
101] or negatived; and as the demands, *which might be set up

against him, had been well defined by a succession of decis-
ions, it was thought as well to point out the chief bearings of the
subject in the earlier editions of this work. Since then, the power
of advancing counter-claims has been so much extended that most
of the rules relating to set-off are obsolete. So much only is there-
fore retained here of .what appeared before as may be useful until

the new practice is settled.

Sec. 124, No set-off in actions for unliquidated damages.

Judgment.

Under the statutes of set off * debts only could be set off; or ve

set off against.

This restriction no longer exists.

Claims can now

be set off or set against one another whether they sound in damages

or not.’

gross negligence, or negligence
amounting to misconduct on the part
of the parent or master, will be a bar
tothe action. See remarks of Lord
Kenyon in Reddie v. Scott, ante. But
mere negligence does not bar the ac-
tion, but may be shown in mitigation
of damages. Parker v. Elliott, 6 Munf.
(Va.) 587; Zerfing v. Mourer, 2 Greene
(Iowa), 520; Richardson v. Fouts,
ante.

A recovery may be had even though
the intercourse was accomplished
forcibly; Damon v. Moore, 5 Lans. (N.
Y.) 454; Kennedy v. Shea, 110 Mass;
and although neither pregnancy nor
venereal disease results therefrom,

1The law of set-off is a matter of
procedure, and governed by the law
of the country where the remedy is
sought. Stimson v, Hall, 1H. & N.
831; 26 L. J. Ex. 212; Dakin »v.
Oxley, 15 C. B. (N. 8.) 646; 83 L. J.
C. P, 289.

22G. H. ch. 22, § 18, and 8G. II.
ch, 24.

3 Judicature Act, 1878, § 24, subs.

provided any incapacity to labor was
induced thereby as the proximate
cause of the act. Abrahams v. Kid-
ney, 104 Mass. 222. And the fact that
the defendant procured, or caused an

‘abortion to be procured upon the ser-

vant, may be shown as a ground of
damage. Klopfer v. Bromme, 26 Wis.
372.

In an action for the seduction of
the plaintiffs daughter, it is competent
for him to give in evidence, on the
question of damages, the character of
his own family, and also the pecuni-
ary circumstances of the defendant.
McAulay v. Birkhead, 13 Ired. 28.

(3). Ord. 19, R. 8. It is, perhaps,
safe to say that whenever the defendant
can maintain an action ut law against
the plaintiff for any matter of con-
tract growing out of transactions be-
tween the parties, and the damages
recoverable are fixed by a legal stand-
ard, they may be plead by way of set-
off; Eads v. Murphy, 52 Ala. 520; or
any debt or money claim which the
SrEr-orr.

167

A judgment obtained by one party might be set off against an
action by the other party;?or against another judgment, notwith-
standing the plaintiff might also have a separate demand on one of

defendant has against the plaintiff
arising out of ordinary transactions
between them which were due and un-
paid when the action was brought,
Russell ». Redding, 50 Ala. 448; Allen
». Maddox, 40 Iowa, 124; Smith 2.
Taylor, 9 Ala. 633; Milburn v. Guy-
ther, 8 Gill (Md.), 92. Set off was
unknown to the common law but was
borrowed from the civil law and is in-
terpreted by the same rules of con-
struction; Meriwether v. Bird, 9 Ga.
594; and the question as to what may
or what may not be so plead, as well
as the manner in which it shall be
plead, is regulated by statute, but the
statutes upon this subject are quite
similar in all the States, and any ap-
parent conflict that exists in the cases,
arises mainly from the difference in
the language and provisions of these
statutes. In all the States, however,
certain general principles control. As
a general rule demands not due at the
commencement of the action cannot
be set off; Henry v. Butler, 32 Conn.
140; Hardy ». Corlis, 21 N. H. 356;
Houghton »v. Houghton, 37 Me. 72;
Martin v. Kunzmuller, 87 N. Y. 396;
Edwards v. Temple, 2 Harr. (Del.)
322; Carprew v. Canavan, 5 Miss. 370;
Brazleton v. Brooks, 2 Head (Tenn.),
194; McAlpin »v, Wingard, 2 Rich. (8.

C.) 547; nor unless the demand is liqui-:

dated; Bruce v. Burdet, 1 J. J. Marsh.
(Ky.), 80; Corey v: Janes, 15 Gray
(Mass. ), 543; Ricketson v. Richardson,
19 Cal. 380; Hall o. Glidden, 39 Me.
445; Montague ». Boston Iron Works,
97 Mass. 502; Casper v. Thigpen, 48
Miss. 635; Brake v. Corning, 19 Mo.
125; and damages are held to be un-
liquidated when there is no criterion
provided by the parties or by law,
operating on the contract by which
to ascertain the amount. Eads ».
Murphy, ante; McCord ». Williams,
2 Ala. 71.

In some of the States, however, it
is held that the statute does not ex-
clude unliquidated damages arising

out of the contract upon which the ac-
tion is predicated; Keyes o. Western
Vermont Slate Co., 34 Vt. 81: Hubbard
0, Fisher, 25 id, 589; Haynes v. Prothro,
10 Rich. (8. 0.) L. 318; Speers o.
Sterrett, 29 Penn. St. 192; Schubart
v. Harteau, 34 Barb. (N. Y.) 447;
Halfpenny v. Bell, 82 Penn. St. 128;
Rogers v. Humphrey, 39 Me. 882;
Dennis v. Belt, 80 Cal. 247; Logan v.
Tibbott, 4 Greene (Iowa), 389; and
this is the rule whether the contract is
contained in several instruments and
consists of several independent stipu-
lations, and the action is brought for
the breach of only one of the stipula-
tions, or not, or whether one part of
the contract is in writing and the
other only by parol; Mell ». Moony,
30 Ga. 413; Branch v. Wilson, 12 Ala.
548; and in general it may be said
that unliquidated damages may be
the subject of set-off where they can
be recovered in indebitatus assumpsit ;
Ragsdale v. Buford, 3 Hayw. (Tenn.)
119; and in Texas it is held that un-
liquidated damages arising out of a
breach of contract may be set off
against an open account; Bodman 2,
Harris, 20 Tex. 31; and with a few
exceptions, this is the general rule.
In Kansas, under the statute any
cause of action arising from contract,
whether it be for a liquidated de-
mand, or for unliquidated damages,
may constitute a set-off, and be plead
as such in any action founded upon
contract whether the action is for
liquidated damages or not. Stevens
v. Able, 15 Kan. 584. In Florida,
under a statute making all demands
mutually existing whether liquidated
or not proper subjects of set-off it is
held to include only matters growing
out of a contract express or implied,
and does not include damages arising
from a tort. Robinson v. L'Engle, 13
Fla. 482. But unliquidated damages
arising out of a tort are not the sub-
ject of a set-off, even against an action
foratort. Hart v. Davis, 21 Tex. 411;

1 Stanton v. Styles, 5 Ex. 578
168

SEr-oFF.

the defendants,' and though the judgments were in different courts.’
Nor did it make any difference that a writ of error was pending to
reverse the judgment.’ A verdict before judgment could not be

Pulliam v. Owen, 25 Ala, 492; Hall’s
Appeal, 40 Penn. St. 409; Shelly v.
Vanarsdoll, 28 Ind. 548; Schweizer 2.
Weiber, 6 Rich. (S. C.) 159; New
York vo. Parker, etc., Co., 8 Bosw.
(N. Y. Sup. Ct.) 300; Robinson v.
L’Engle, 13 Fla. 482.

But under the Code in Iowa, a de-
mand sounding in tort may be plead
as an offset; Campbell v. Fox, 11
Iowa, 318; and in Connecticut, it has
been held that where securities in the
hands of acreditor have been con-
verted by him so that the debtor has
a claim against him for their loss, he
may set off the same against the debt
which they were intended to secure;
Bulkeley v. Welch, 31 Conn. 339; and
the same has been held in Wisconsin;
Ainsworth v. Bowen, 9 Wis. 3848; but
in cases of that character, the claim
can fairly be said to arise out of a
contract. In all cases, even though
the party setting up matter in offset
might maintain tort therefor, yet, if the
other party has treated it as a debt,
as, where property has been left with
him to be manufactured, if he applies
it to his own use and gives the other
party credit therefor upon his books,
it may be plead as a set-off if the
other party elects to do so; Brown v.
Brown, 55 N. H. 74; so money paid
to another upon an unlawful considera-
tion may be set off asmoney paid for
liquors unlawfully sold. Roethke ».
Brewing Co., 38 Mich. 340. In an
action for a nuisance, or for damages
to property by any unlawful act, in-
cidental benefits arising to the plain-
tiff therefrom cannot be plead by way
of set-off. Such a defense is available
only in mitigation of damages. Fran-
cis ». Schoelkopf, 58 N. Y. 152; New
Orleans R. R. Co. v. Moye, 39 Miss.
874. Generally, the tort cannot be
waived so as to make the damages aris-
ing therefrom a proper matter to be
set-off under the statutes, Mayor, etc.

' Glaister v. Hewer, 8 T. R. 69.
* Barker »v, Braham, 8 Wils. 896;
Bridges v, Smyth, 8 Bing. 29.

o. Parker Vein S. 8. Co., 12 Abb.
Pr. (N. Y.) 800; Rowan». Sharp’s Rifle
Co., 29 Conn. 282. Thus, in Pierce v.
Hoffman, 4 Wis. 277, a claim for
moneys embezzled, was held not a
proper matter of offset to an action
in favor of the embezzler. See, also,
Whitaker v. Robinson, 16 Miss. 349;
Hopkins v. Megquire, 35 Me. 78;
Harris ». N. O. R. R. Co., 16 La.
Ann, 140.

Inasmuch as no demand, which can-
not be made the ground of an action
at law, can be set off, it follows as a
matter of course that a demand that
is barred by the statute of limitations
cannot be sustained as an offset.
Taylor v. Gould, 57 Penn. St. 152;
White v. Turner, 2 Gratt. (Va.) 502 ;
Gilchrist v. Williams, 3 A. K. Marsh.
(Ky.) 235; Parker o. Sanborn, 7 Gray
(Mass.), 191. Indeed, the matter set
up is subject to the same defenses on
the part of the plaintiff, as though it
had been made the ground of an inde-
pendent action, but the plaintiff is not
compelled to plead his defenses
thereto, but may make them on the
trial.

Demands not mutual or existing be-
tween the same parties cannot gener-
ally be set off, unless in cases where
the statute specially makes them so ;
Knour v. Dick, 14 Ind. 20; Van Mid-
dlesworth v. Van Middlesworth, 32
Mich. 188; Goodwin »v, Richardson,
44 N. H. 125; OCoursen »v, Hamlin, 2
Duer (N. Y. Sup. Ct.), 518; Case ».
Henderson, 23 La. Ann. 49; so, too,
they must be due in the same right;
Lovel v, Whitbridge, 1 McCord (8.
C.),7; Snow v. Conant, 8 Vt. 301; Bald-
win v. Briggs, 53 How. Pr. (N. Y.)
80; Dawson ». Wilson, 55 Ind. 216;
Meeker v. Thompson, 43 Conn. 77 ;
McGehee ». Harrison, 51 Ala. 522.

Exceptions are made, however,
upon equitable grounds, where the
party against whom the set-off exists

3 Reynolds v, Beerling, 8 T. R. 188,
n. An appeal now does not operate as
a stay of proceedings, except by
order. Ord. 58, R. 16,
SEr-orr.

169

set off,' and in such a case the court would not stay proceedings
until a motion for a new trial had been disposed of, in order to en-
able the defendant to sign judgment, and set off his damages and

is shown to be insolvent; Hamilton v.
Van Hook, 26 Tex. 302; Alliance
Bank v. Holford, 16 C. B. (N. 8.) 460;
Condon v. Shehan, 46 Miss. 710; and
demands not nominally mutual, will
sometimes be permitted to be set off,
where they are actually so; Ferris v.
Burton, 1 Vt. 439; as, where the
parties have so treated them. Second
Nat. Bank. v. Hemingway, 1 Cinc.
(Ohio) 435.

To determine whether a demand is
mutual or not, it is simply necessary
to inquire whether, if the set-off was
made the ground of a separate action,
any other parties than those to the
suit would have to be made parties
thereto either as plaintiffs or defend-
ants. McConihe ». Hollister, 19
Wis. 269.

But where an action is brought
upon a demand in the name of a third
party who is not the owner of the
demand ; in other words, who is
merely a nominal plaintiff, the defend-
ant may set off a demand against the
real plaintiff, as the law will not per-
mit a person to escape liability to
have his claim reduced by a just claim
against him, by substituting another
person as plaintiff. Andrews v. Var-
rell, 46 N. H. 17. So, where an
action is brought against a person
who holds a note or other obligation
against the plaintiff and another per-
son, and in fact the plaintiff is the
principal debtor, and the other per-
son only a surety, it may be set up by
way of set-off against the prircipal;
Andrews v. Varrell, 46 N. H. 17; and
a demand only nofminally in favor of
one party, may be set off against the
payor by the person really in interest.
Id

A joint debt cannot be set off against
a separate debt, nor a separate debt
against a joint debt. Bibb v. Saund-
ers, 2 Bibb (Ky.), 86; Blanks v. Smith,
Peck (Tenn.), 186; M’Dowell ».
Tyson, 14 Serg. & R. (Penn.) 300 ;
Porter v. Nekervis, 4 Rand. (Va.) 859;
Howe ». Sheppard, 2 Sumn. 409;

Walker v. Leighton, 11 Mass. 140;
Woods ». Carlisle, 6 N. H. 27; Stew-
art v. Coulter, 12 Serg. & R. (Penn.)
252; Waters v. Bussard, 2 Cranch’s C.
Ct. 226; Langley »v. Brent, 3 id. 365;
Trammell v. Harrell, 4 Ark. 602;
Hinckley o, West, 9 Ill. (4 Gilm.) 136;
Finney v. Turner, 10 Mo. 207; Burg-
win v. Babcock, 11 Ill. 28; Hecken-
kemper v. Dingwehrs, 32 id. 538;
Banks v. Pike, 15 Me. 268; Wilson v.
Keedy, 8 Gill (Md.), 195; Bridgham
o. Tileston, 5 Allen (Mass.), 871;
Bullard v. Dorsey, 15 Miss. (7 Smed.
& M.) 9; Ross ». Knight, 4 N. H.
236; Murray ». Toland, 3 Johns. (N.
Y.) Ch. 569; Mott v, Burnett, 2 E.
D. Smith (N. Y.), 50; Campbell v.
Genet, 2 Hilt. (N. Y.) 290; State
Bank v. Armstrong, 4 Dev. (N. C.)
L. 519; Bunting v. Ricks, 2 Dev. &
B. (N. C.) Eq. 130; Jones v. Gilreath,
6 Ired. (N. C.) L. 338; Henderson v.
Lewis, 9 Serg. & R. (Penn.) 379;
Pitcher v. Patrick, Minor (Ala.), 321;
Archer v. Dunn, 2 Watts & 8S.
(Penn.) 327; Watson v. Hensel, 7
Watts (Penn.), 344; Kenedy v. Cun-
ningham, Cheves (S. C.), 50; Turbe-
ville ». Broach, 5 Coldw. (Tenn.)
270; Williams v. Miller, 1 Wash. T.
105; Allbright v. Aldrich, 2 Tex.
166 ; and the same rule prevails in
equity, as at law. Brewer v. Nor-
cross, 17 N. J. Eq. 219; Dale »v.
Cooke, 4 Johns. Ch. (N. Y.), 11;
Robertson v. Parks, 8 Md. Ch. 65.

The separate debt of one partner
cannot be set off against a debt due
the firm, nor can a debt due the firm
be set off in an action against one
partner for a debt due from him.
Ross v. Pearson, 21 Ala. 473; Dawson
». Wilson, 55 Ind. 216; Baldwin v.
Berrian, 53 How. Pr. (N. Y.) 81;
Harlow v. Rosser, 28 Ga. 219; Rit-
chie v. Moore, 5 Munf. (Va.) 388;
Francis v. Rand, 7 Conn. 221; Wil-
son v. Runkel, 38 Wis. 526.

Tt is error, after having indirectly
affirmed the existence of a partnership
between the plaintiff and defendant,

! Garrick v. Jones, 2 Dowl. 157.

22
170

costs against the costs of the action.

Set-orr.

Still less would they stay

execution on a judgment that had actually been obtained, until a
cross action was determined, that one might be set off against the

to permit an indebtedness to the part-
nership to be set off against an indi-
vidual debt due to the plaintiff from
the defendant. Houston v. Brown,
23 Ark. 333; and a debt due to a
partnership cannot be set off against a
debt due by an individual partner of
the firm; but if the goods furnished
by the partnership were charged to
the individual partner, and by him
furnished to the plaintiff, the debt
may be set off against the plaintiff's
demand. Laint 2, Brolaski, 38 Mo.
51. In asuit by B. & Co. against M.
& Co., it was held that the defendants
might plead in set off a claim arising
from a transaction between them-
selves, T. and C., and the plaintiffs;
it appearing that T. and C., although
not named in the firm of M. & Co.,
were connected with them as partners
in that transaction, and alsoin the
transaction which formed the basis of
the plaintiff's claim. . Bird v. McCoy,
22 Iowa, 549.

A demand that has been assigned
cannot be made the subject of a set-
off, unless it was assigned before the
action was brought; Whitaker v. Turn-
bull, 18 N. J. L. 172; Bishop o.
Tucker, 4 Rich. (8. C.) 178; Cham-
bers v. Lewis, 11 Abb. Pr. (N. Y.)
210; Speers v. Stetrett,29 Penn. St.
192; nor unless the assignment is ab-
solute. If it is conditioned it cannot
be set off; McDonald v. Harrison, 12
Mo. 447; Arnold v. Johnston, 28
How. Pr. (N. Y.) 249. ?

The rule is, that, in order to render
a demand available as an offset, the
defendant must be entitled to a sub-
sisting legal right of action on it ac-
quired before the action was com-
menced; Chambers v. Lewis, 11 Abb.
Pr. (N. Y.) 210; Speers ». Sterrett,
29 Penn. St. 192; McDade v. Mead,
18 Ala. 214; Beesley ». Crawford, 19
Ohio, 126; Dangerfield ». Rootes, 1
Munf. (Va.) 529; but in Texas an as-
signed claim may be plead as set-off
if it was assigned after suit brought,
but before the pleadings are filed, but

in any event, the plaintiff recovers
costs. Thomas v. Young, 5 Tex: 253;
Gaines v, Salmon, 16 id. 311. Any
negotiable security or obligation
whether a note, bond, mortgage or
other obligation, may be set off if due
and assigned before suit brought;
Clopton v. Morris, 6 Leigh (Va.),
278; Northern Bank v. Kyle, 8 Miss.
860; Russell v. Lithgow, 1 Bay (8.
C.), 487; Murray vo. Williamson, 3
Binn, (Penn.) 135; Johnson v. Com-
stock, 6 Hill (N.Y.), 10; but, except
where the statute gives the assignee of
a nov-negotiable claim a right to
maintain an action in his own name
thereon, a non-negotiable security can-
not be set off by an assignee; Albee
v. Little 5 N. H. 277; Wolf v.
Beales, 65. & R. (Penn.) 242; Mead
v, Gillett, 19 Wend. (N. Y.) 397,
and in an action upon a non-negoti-
able security, or upon any demand
not assigned until it was overdue the
defendant may set off any demand he
had against the payee thereof before
notice of its transfer; Hurdle v. Han-
ner, 5 Jones’ (N.C.) Law, 360; Thomp-
son 0, McClelland, 29 Penn. St. 475 ;
Finnell v. Nesbitt, 16 B. Monr. (Ky.)
351.

When property that is exempt from
attachment is sold, the person purchas-
ing it cannot set off a debt owing to
him from the vendor in an action for
the price, particularly if the sale is
made for the purpose of enabling the
vendor to purchase other similar prop-

- erty, and the vendee knows the fact;

Mulliken v. Winter, 2 Duv. (Ky.) 256;
nor can a demand be set off against a
claim, when there is an express or im-
plied agreement that it shall not be;
as, if A pays money to B for certain
property which B is to deliver to him,
upon B’s failure to perform, he cannot
set off in an action by A for the
money a former demand that he had
against A, as this would tend to en-
courage the collection of debts by
fraudulent practices. West 0. Med-
dock, 16 Ohio St. 417. Thus, a prom-

1 Johnson v. Lakeman, 2 Dowl. 646.
Srt-orr.

other.!

171

Where a creditor had taken his debtor in execution, this

operated as an election binding the judgment creditor to enforce his

claim by that means and no other.

ise ‘‘to pay R. or bearer $900 and the
sum of $600 in addition, providing R.
has paid and discharged a mortgage
given by him to L. railroad for $600,
on a certain piece of land for which
this note is given in part payment,
the mortgage to be paid within three
years; if not, K. t» apply the $600 in
payment thereof,” is an absolute prom-
ise to pay the $900, and K. holding
R.’s note to the mortgagee for $600,
so secured, cannot set it up as a coun-
ter-claim to an action for the $900
commenced before the $600 fell due,
as the counter-claim is not one arising
out of or connected with the cause of
action. Rickard v. Kohl, 22 Wis. 506;
Chapman v. Dease, 34 Mich. 375. In
determining the question as to whether
a demand is the proper subject of set-
off, the relation of the parties to the
debt is of vital consequence; as, un-
less actually mutual, they are not good
by way of offset. But as we have seen,
the fact, that they are not nominally
mutual, is no objection. The real in-
terest controls. In an action against a
husband alone, he cannot set off a de-
mand due to him and his wife jointly ;
Suttun v. Mandeville, 1Cr. (U. 8. C.
C.) 2; nora demand due from the
plaintiff to the wife; French v. Garner,
7 Port. (Ala.) 549; nor in an action
against a husband and wife upon a
demand upon which the husband is
only nominally a defendant, the husband
cannot set of a debt due to him from
the plaintiff; Carpenter v. Leonard, 5
Minn. 155; nor in an action in the
name of the husband and wife to re-
cover a debt or other claim in right of
the wife, can a debt due from the hus-
band alone be set off; Glazebrook v.
Ragland, 8 Gratt (Va.) 332; Jamison 2.
Brady, 6S. & R. (Penn.) 466; Pierce v.
Dustin, 24 N. H. 417; Green v. Carson
4 Metc. (Ky.) 76; unless the husband
is legally entitled to have the proceeds
of the judgment; Ferguson »v. Lothrop,
15 Wend. (N. Y.) 625; Lowman’s Ap-
peal, 3 W. & S. (Penn.) 349; Wishart 2.
Downey, 158. & R. (Penn.) 77; or,

Therefore, he could not plead

unless the debt against the husband
grew outof matters arising against the
wife, cr on her account. Dolph o.
Rice, 21 Wis. 590.

As between landlord and tenant it
is held in Connecticut that a demand
for goods sold, etc., cannot be set off
in an action for rent, unless so agreed
between the parties; Gunn ». Scovil,
5 Day (Conn.), 118; but generally it
may be said that a debt due from the
landlord to the tenant may be so ap-
plied, unless excluded expressly or by
fair implication; Grossman v. Lauber,
29 Ind. 618; and especially is this so
where the debt accrued respecting the
estate, as for taxes paid by the tenant
which should have been paid by the
landlord. Fransciscus v. Riegart, 4
Watts (Penn.), 98, 476.

But damages arising from a breach
of any of the covenants of the Case
are held not to be so pleadable;
Sickles v. Fort, 15 Wend. (N. Y.)
559; or from a trespass or other wrong-
ful act of the landlord; Drake v.
Cockroft, 4 E. D. Smith (N. Y¥. C.
P.), 84; Mayor, etc., 0. Parker Vein

8S. Co., 21 How. Pr. (N. Y.)
289; but such matters may be re-
couped. Tone v. Brace, 8 Paige’s
Ch. (N. Y.) 597.

As between a mortgagor and mort-
gagee—the mortgage being given for
the purchase-money of the land—in
an action to foreclose the mortgage,
the mortgagor may vecoup any dam-
ages arising from the misrepresenta-
tion or fraud of the mortgagee, as to
the quantity or quality of the land,
but such matters are not a proper
subject of set-off; Avery v. Brown, 31
Conn. 398; Moberly ». Alexander, 19
Iowa, 162; and cannot be recouped
where the action is brought by an
asignee, who took the mortgage be-
fore maturity, nor as,against him, can
claims arising out of contract against-
the mortgagee be set off; Breen ».
Seward, 11 Gray (Mass.), 118, nor
can a mortgagor set off or recoup
the amount of an outstanding in-

" Williams v. Cooke, 10 Moo. 821.
172

SET-oFF.

the judgment debt by way of set-off to an action by the debtor for

a separate and distinct matter.'

[*102]

cumbrance on the land, even though
the mortgagor conveyed to him
by warrantee deed, unless he has
paid the same; Timms v. Shannon,
19 Md. 296; nor can a debt existing
in favor of the mortgagor against the
mortgagee when the mortgage was
made, be set off against the mortgage
or debts that were subsequently
created, unless from the course of
dealing it is evident that the parties
so intended. In other words, unless
the debt can he treated as a payment
on the mortgage. Dolman v. Cook,
14 N. J. Eq. 56; Bird v. Gill, 12
Gray (Mass.), 60; Stone v. Buckner,
20 Miss. 73; Brackett v. Sears, 15
Mich. 244; Culbertson ». Lennon, 4
Minn, 51. Thus, where the holder of
a mortgage died, and the mortgagor
was appointed executor, and upon a
settlement of the separate accounts of
the executor, a balance was found to
be due to him, it was held that the,
balance could not be set off against
the mortgage in a suit to foreclose the
same. Dolman v. Cook, ante. ‘“ Noth-
ing,” said the court, ‘‘can be set up
in satisfaction of the mortgage, in
whole or in part, except payment.”
Damage for the breach of a subse-
quently made contract cannot be set
off against the amount due upon a
mortgage. Long v. Long, 14 N. J.
Eq. 462; Jennings v. Webster, 8
Paige’s Ch. (N. Y.) 508. But dam-
ages resulting from a breach of a cov-
enant of seizin in the deed, executed
by the mortgagee to the mortgagor,
may be set off by way of counter-
claim. Hall v. Gale, 14 Wis. 54;
Walker ». Wilson, 18 id. 522. But, in
an action by the mortgagor to recover
a claim or demand against the mort-
gagee, the mortgagee may, if he elects
to do so, set off the amount due on
the mortgage. Filkin v. Ferris, 18
Barb. (N. Y.) 581; Cattel v. Warwick,
6 N. J. Law, 190. Where, subse-
quent to the execution of the mort-

And the rule was the same when
the prisoner was *discharged by consent of the creditor,
upon giving a fresh security for the judgment, even though

gage, the mortgagor makes advances
to the mortgagee, in equity, either
the mortgagor or his judgment cred-
itors are entitled to have the amount
applied upon the mortgage; Niagara
Bank v. Rosevelt, 9 Cow. (N. Y.) 409;
and according to the last-named case,
this is so, even though the mortgage
has been assigned when overdue, to
one who had no notice of the facts.
An executor or administrator can-
not, in an action against him person-
ally, set off a claim due the estate.
Wood v. Hardy, 11 La. Ann. 760;
Thomas v. Hopper, 5 Ala. 442; Brad-
shaw’s Appeal, 3 Grant’s Cas. (Penn.)
109; Richbourg v. ‘Richbourg, 1
Hack. (8. C.) Ch. 168; White v. Word,
22 Ala. 442; nor in an action against
him -in his representative capacity,
can he set off a debt due to him; Har-
bin »v. Levi, 6 Ala 399; but he may
set off a debt due to the estate. Proc-
ter v. Newhall, 17 Mass. 81; Wilson v.
Edmonds, 24 N. H. 517; Harris v.
White, 5 N. J. Law, 622; Galloney's
Appeal, 6 Penn. St. 37. In an action
by an executor or administrator against
a person for a debt due the estate, a
demand against him personally can-
not be set off against it, nor can a
debt which accrued before the death
of the intestate be set off against a
claim that accrued in favor of the
estate after the death of the intestate,
as the principle of mutuality in such
cases requires not only that the debts
should be due to and from the same
rsa but also in the same capacity.
haw v. Gookin, 7 N. H. 16; Day-
huff », Dayhuff, 27 Ind. 158; Cook o,
Lovell, 11 Iowa, 81; Bizzell v. Stone,
12 Ark. 878; Harte 2 Houchin, 50
Ind. 827. A legatee cannot, in an
action against him in favor of the
estate, set off a legacy due him under
the will, unless the first proves that
the estate is solvent and sufficient to
satisfy all the legacies. Dobbs ».
Prothro, 55 Ga. 73. Claims against

1Taylor », Waters, 5M. & S, 108.
SEr-oFF. 173

the security itself proved void on account of some informality.!
The judgment debt, however, still subsisted ; and if the debtor had
a cross claim against the creditor for costs in the same action,
whether the claim accrued before or after the judgment, the court
would, in the exercise of its equitable powers, restrain the debtor
from enforcing this claim, unless he paid the judgment debt, or
allowed it to be set off against the claim.’

A distinction also exists between the statutory right to set off a
judgment by way of defense to an action, and the appeal to the
equitable jurisdiction of the court to allow such set-off in execution
proceedings, where the effect of the set-off would be to destroy the
attorney’s lien for costs. In the latter case the court refuses to ex-
ercise its power of allowing a set-off, unless the attorney’s costs are
first satisfied. In the former case, the defense, being one of strict

right, must be allowed.’

an agent cannot be offset against a
debt due the principal; Wilson 2.
Codman, 3 Cr. (U. S.) 193; Godfrey
v. Forrest, 1 Bay. (S. C.) 300; White
o. Tucker, 10 La. Ann. 654; Hurlbert
2. Ins. Co., 2 Sumn. (U.8.) 471;
Alsop v. Caines, 10 Johns. (N. Y.) 396;
Gordon v. Church, 2 Cai. (N. Y.) 299;
Foster v. Hoyt, 2 Johns. Cas. (N.Y.)
827; White ». Jaudon,9 Bosw. (N. Y.
Sup. Ct.) 415; nor in an action against
an agent fora debt created by him
without disclosing his agency, can he
set-off a debt due from the plaintiff to
his principal. Forney v. Shipp, 4
Jones’ (N. C.) L. 527,

The mere fact that the defendant in
an action is contingently liable for the
plaintiff as surety, does not render
such contingent liability operative as
a set-off to an action against him
in favor of the principal. In order to
make it. so, he must have paid the
claim, or become solely liable thereon
either by assuming the debt, or by
suffering a judgment to be entered
against him therefor before action
brought; Walker v. McKay, 2 Metc.
(Ky.) 294; McDowell o. Crook, 10

1 Jacques v. Withy, 1 T. R. 557.

2 Thompson ». Parish, 5 C. B. (N.
S.) 685; 28 L. J. C. B. 153.

3 Mercer v. Graves, L. R, 7 Q. B.
499; 41 L. J. Q. B. 212. As to

La. Ann. 31; Hannay». Pell, 3 HE.
D.S. (N. Y.) 432; its payment after
suit will not avail the surety; Cox
». Cooper, 3 Ala. 256; and if he
pays the debt before it becomes due,
it wili not be available as an off-
set until after it becomes due, as
the principal is entitled to the whole
period stipulated for in the instru-
ment in which to pay it. Jackson 0.
Adamson, 7 Blackf. (Ind.) 597. In an
action against the principal and surety,
the principal may set off a debt due
to him alone from the plaintiff. be-
cause he is the real party in interest;
Brunbridge »v. Whitecomb, 1 D. Chip.
(Vt.) 180; Crist ».. Brindle, 2 Rawle
(Penn.), 121; Mahurin v, Pearson, 8
N. H. 539; Concord v. Pillsbury, 33
id. 310; contra, see Woodruff v. State,
7 Ark. 883; Dart v. Sherwood, 7
Wis. 523; and it has been held that
in an action against the surety alone,
he may, with the consent of the
principal debtor, set off a debt due
to the principal debtor from the
plaintiff. Lynch ». Bragg, 13 Ala.
773.

setting off damages and costs in
equity, see Throckmorton v, Crawley,
L. R., 8 Eq. 196; Ex parte Cleland, L.
R., 2 Ch. 808.
174 SEt-oFrF.

Money due under an order of nisi prius might be set off.!

Sec. 125. Set-off where the debtor promises to pay ready money.

It was held to be no answer to a plea of set-off, that the money
for which the action was brought was lent, or the goods ‘delivered
upon an express promise to pay ready money.’ But where there
had been such a promise, an offer to set off a debt did not entitle a
party to bring trover for the goods before the lien of the holder was
satisfied.*

Sec. 126. Debt must be due.

A debt to be set off under the statutes of set-off, and also, it
would seem, under the judicature acts, must be one which can be
enforced by suit. Therefore, a debt arising upon the promise of an
infant, which has not been ratified under the provisions of 9 G. IV.,
c. 14, § 5, cannot be set off.* It must also, under the statutes of
set-off, be completely due at *the time of action brought.°
Therefore, a note could not be set off before'it had reached
maturity.” Nor a judgment which was recovered after the com-
mencement of the suit, but before plea.’ But although an attorney
cannot maintain an action on his bill of costs, till one month after
delivery, it may be made the subject of set-off, if delivered less than
a month before the action against him was commenced, provided
sufficient time has elapsed to allow of its being taxed,° even though
no bill has been delivered, the court having power in case of hard-
ship to stay proceedings, so as to allow proper taxation before trial.”

There does not appear to have been any decision yet whether a

[*103]

‘Newton v. Newton, 8 Bing. 202.

?Lechmere v. Hawkins, 2 Esp. 626;
Cornforth v. Rivett, 2 M. &8. 510.

3 Clarke v. Fell, 4 B. & Ad. 404.

4Rawley vo. Rawley, i Q. B.D.
460; 45 L. J. Q. B. 675.

5 Braithwaite v. Coleman, 4 N. &
M. 654; Kelly o. Garrett, 6 Ill. 649;
Henry v. Butler, 382 Conn. 140;
Houghton »v. Houghton, 37 Me. 72;
Cox ». Cooper, 3 Ala. 256; Edwards v.
Temple, 2 Harr. (Del.) 322; Huling 2.
Hugg, 1 W. & S. (Penn.) 418; Varney
». Brewster, 14 N. H. 49; Martin v.
Kunzmuller, 87 N. Y. 396; McAlpin
v. Wingard, 2 Rich. (8. C.) 547;
Hardy v. Corlis, 21 N. H. 356; Ryan

%. Barger, 16 Ill. 28; Trust Co. », Har-
ris, 2 Bosw. (N. Y. Sup. Ct.) 75;
Walker 0. McKay, 2 Metc. (Ky.) 294;
Wolfe v, Washburn, 6 Cow. (N. Y.)
261; Brazleton v. Brooks, 2 Head
(Tenn.), 194; Toppan v. Jenness, 21 N.
H. 232; Buffym v. Deane, 4 Gray
esi 885; Frazier v. Gibson, 7 Mo.

® Rogerson 0. Ladbroke, 1 Bing. 98.

"Evans v. Prosser, 3 T. R. 186.

*Bulman v. Birkett, 1 Esp. 449;
Martin ». Winder, 1 Doug. 199, n.;
Lester v. Lazarus, 2 C. M. & R. 669.

* Brown ». Tibbits, 11 0. B. (N. S.)
855; 31 L. J. C. P. 206.
SEr-orr. 175

claim, which can be set up by counter-claim, must have been com-
plete at the time when the action was commenced, or whether it is
sufficient if it matured before the date of the statement of defense
and counter-claim. Seeing that the counter-claim is to have the
same effect as a statement of claim in a cross action, it would seem
that the claim ought to be referred back to the date of the writ,
and that it will be necessary under the judicature acts, as well as
under the statutes of set-off, that it should have been complete

then.

The debt must continue due at the commencement of the suit.
Therefore, a debt cannot be set off which is barred by the bankrupt
or insolvent acts,! or by the statute of limitations.’

Sec. 127. Must be due in the same right,

need not be identical.

Parties to claim and counter-claim

The debt sued for and that intended to be set off must have been
mutual, and due in the same right, and there could be no set-off

where either of the debts was due in auter droit.*

To a certain ex-

tent this rule would probably extend to counter-claims, but not to

the extent to which it was *formerly carried. For example,
a joint debt could not have been set off against a separate
one, nor a separate against a joint debt.*
A defendant may set up by counter-claim a claim against the

case.

' Hayllar 0. Sherwood, 2 Nev. & M.
401; Francis ». Dodsworth, 4 C. B.
202.

? Mead »v. Bashford, 5 Ex. 336;
Walker v. Clements, 15 Q. B. 1046;
Maples v. Avery, 6 Conn. 20; Taylor
v. Gould, 57 Penn. St. 152; Williams
v. Gilchrist, 3 Bibb (Ky.), 49; Madden
v. Madden, 2 Mill’s (8. C.) Const. 350;
but the rule is otherwise if the debt
has been revived by anew promise;
Lee v. Lee, 31 Ga. 26; or if the stat-
ute had not run before the action was
brought, although it had run before
the plea was filed; Crook v. McGreal,
3 Tex. 487; or in any case where the
debt, from any cause, is saved from
the operation of the statute; Dicka-
son v. Bell, 18 La. Ann. 249; Parker
v. Sanborn, 7 Gray (Mass. ), 191.

?Gale v. Luttrell, 1 Y. & J. 180.
Demands, to be set off, must be mu-
tual and connected, and due in the

[*104]

This is no longer the

same right. Lovel ». Whitbridge, 1
McCord (8. C.), '7; Hurlbert v. Ins.
Co., 2 Sumn. 471; Shepherd v. Turner,
38 McCord (8. ©.), 249; Gregg o.
James, 1 Ill. 148; M’Kinney v. Bel-
lows, 3 Blackf. (Ind.) 31; Scott v.
Rivers, 1 Stew. & P. (Ala.) 19; Dar-
roch v. Hay, 2 Yeates (Penn.), 208;
Morrison v. Furnham, 1 A. K. Marsh.
(Ky.) 41; Wright ». Rogers, 3 Mc-
Lean, 229; Meniffee v. Ball, 7 Ark.
520; Gibbs v. Cunningham, 4 Md. Ch.
822; Grew v. Burditt, 9 Pick. (Mass.)
265; Snow v. Conant, 8 Vt. 308; Cum-
mings v. Williams, 5 J. J. Marsh.
(Ky.) 384; Banton v. Hoomes, 1 A.
K. Marsh (Ky.) 19.

4 France ». White, 6 Bing. N. C.
33. Where there had been an express
agreement, debts of this nature might
be set against each other. Kinnerley
v,. Hossack, 2 Taunt. 170.
176 SEr-oFF.

plaintiff and another person jointly ;1 and the exchequer division
held quite recently, in a case in which two railway companies, as
joint lessees of a railway, sued for statutory tolls, that the defendant
could set up against each company a separate counter-claim for
damages in respect of delay in the delivery of goods.’

Sec. 128. Partners.

A debt due to defendant, as a surviving partner, might be set off
against a demand on him in his own right * and, vice versa, a debt
due trom the plaintiff, as surviving partner, might be set off against
a demand by him in his own right.*. So, where by the terms of the
partnership the plaintiff was to be the only ostensible trader the
others being mere sleeping partners, a separate debt due from him
might be set off against adebt due to the firm, of which he was the

1 Ord. 22, R.5. This depends upon
the provisions of the statute. In this
country, I am aware of no statute that
permits a joint demand to be set up
as a counter-claim against a separate
debt. Baldwin v. Briggs, 53 How. Pr.
(WN. Y.) 80.

? Manchester, Sheffield and Lincoln-
shire Ry. Co. and L. & N. W. Ry.
Co. v. Brooks, 2 Ex. D. 248; 46 L. J.
Ex. 244. A claim for damages for a
violation of a covenant to ship goods
in good cases may be set off by way of
counter-claim in an action brought to
recover the price of other goods;
Wheelock v. Pneumatic Gas Co., 51
Cal. 223; or for breach of the cove-
nants ina lease; Block v. Ebner, 54
Ind. 544, Thus, in an action for
rent, the defendant may, under a
covenant to keep the premises in re-
pair, set up as a counter-claim an
amount expended by him in the neces-
sary repair of the premises, and also
damages sustained by the loss of the
use of parts of the premises, render-
ed untenantable for want of repair.
And he may recover for his actual ex-
penses in repairs, although they ex-
ceeded what they would have cost the
landlord had he employed his own
mechanics. The landlord’s omission
to repair gave the tenant the right to
make repairs by his mechanics, and
with such suitable materials as he
should select. He was bound to be
reasonable and judicious in his re-

pairs; but he was not compelled to
select precisely the same kind of
paper and paint, or tu be precise that
the expense was not a farthing
greater than had before been expend-
ed upon the same spot. He was at
liberty to repair according to the
modern style, and adopt modern im-
provements. Myers v. Burns, 35 N.
Y. 269

In an action by a tenant, a munici-
pal corporation, to annul an executory
agreement for a lease under which the
corporation have occupied, on the
ground that fraud was practiced in
procuring them to take it, the land-
lord may set up a counter-claim for
rent accrued by such occupancy. The
proposed lease, and the resolution of
the corporation to accept it, are to be
regarded us ‘‘ the transaction ” consti-
tuting the foundation of the plaintiffs
claim. Wood v. Mayor, etc., of
New York, 3 Abb. Pr. (N. 8.) 467.

The charges of fraud being unsus-
tained, the defendant may, upon such
counter-claim, recover rent down to
the time of the commencement of the
action, and the defendant may be al-
lowed, at his option, to enter judg-
ment for a specific performance of the
agreement to execute the lease.

ayor, etc., of N.Y. ». Wood, 4
Abb. Pr. (N. 8.) 382.

3 Slipper v. Stidstone, 5 T. R. 498.

4 French v. Andrade, 6T. R, 582.
SET-OFF. 177

manager.’ In such a case, however, it was not sufficient merely to
show that the defendant was ignorant of the existence of other
partners. Therefore, where to an action by a firm for money had
and received, the defendant pleaded that the money was the
proceeds of the sale of goods, which one of the partners had em-
ployed him to dispose of ; that at the time of the sale the defendant
believed that his employer was the sole owner of the goods, and
entitled to receive their proceeds for his exclusive use, and had no
notice of the rights of the other partners; and that after he was so
employed, and before he had any notice of the rights of the other
partners, his employer became indebted to him in an amount which
he offered to set off; the plea was held bad, because it did not
appear that the person who employed the defendant had appeared

to be the sole owner of the goods, with the assent of *his
partners, or that there had been any laches or default on their

part.’

[*105]

Sec. 129. Joint and several note or bond.

A joint and several promissory note’ or bond being the separate
debt of both, might be set off against either, and so in the case of a

1 Stracey 0. Deey, 7 T. R. 361, n.

? Gordon 2. Ellis, 2 C. B. 821.

3 Owen v. Wilkinson, 5 C. B. (N. S.)
526; 28 L. J.C. P 3.

Where three joint owners of a cargo
employed the master of the ship to sell
it for them, and he afterward became
interested in the share of one of the
joint owners, it was held that he could
not offset his share of that amount, in
an action against him by the three
joint owners, to recover the amount
of the sales. Young v. Black, 7 Cr.
(U. S.) 565. So, where A and B re-
covered a joint judgment against W.
A, for himself, and as attorney of B,
assigned the judgment to the United
States, and B subsequently surren-
dered all his interest therein to A,
and authorized him to transfer and as-
sign the same for his own benefit.
Held, that there was a valid assign-
ment of the joint judgment to the
United States, and that the adminis-
trator of W., in an action against him
on the judgment, could not offset a
debt due by A alone to W., though A,
ever since the debt accrued, had been

28

insolvent. Howe v.
Sumn. (U. 8.) 409.

So, either maker of a joint and
several note may be held liable, or the
note set off against either. Pate v.
Gray, 1 Hempst. (Ark.) 155; Dun-
widie v. Kerley, 6 J. J. Marsh. (Ky.)
501.

In a suit brought by T. against M.
and B., a note executed by T. and
another, and payable to M. alone,
would be a good set-off. Carson v.
Barnes, 1 Ala. 93.

In an action where P. and W. were
joint makers, and J. W. the payee of
a note, J. W. assigned the note to
M. Before notice of the assignment
to the makers, P. acquired a note
made by J. W., payable to J. P., and
by him assigned to P. It was held,
in a suit brought in Alabama, by M.
against W., on the note, that W. was
entitled to set off the note against J.
W. held by P., on producing the note
at the trial with the consent of P. to
use it as a set-off. Winston v. Met-
calf, 6 Ala. 756.

So, where A and B being joint

Sheppard, 2
178 Sxt-oFF.

bond intended to be joint, but only executed by one. No debt
could arise from the non-executing party, and therefore it might be
set off against a demand by the other.’

Sec. 130. Husband and wife.

According to the old practice, when a husband was sued on his
own debt, he could not set off a debt due to him in right of his
wife? Nor could a debt due from the wife, dum sola, be set off
against an action by the husband alone, unless he had for some new
consideration made the debt his own.* Where a note was given to
the wife during coverture, the husband had a right to treat it as
joint property, or several. If he chose to treat it as several, he
might sue upon it alone, and the consequence would be to let in, by
way of set-off, any debts due from him, but not those due from the
wife. If on the other hand, he elected to treat it as joint property
of himself and his wife, in her right, and joined her in the action,
it was the opinion of Bayzry, J., that he might let in debts due
from her in her own right. But Lrrriepats, J., said that he did
not think the latter position by any means clear.‘

Now, as claims by or against husband and wife may be joined
with claims by and against either of them separately,° it is probable
that a husband will be allowed to set up by way of counter-claim
any claim in respect of his wife in respect of which he has a bene-
ficial interest. ;

Sec. 131. Executor. Claims by or against an executor.

An executor, sued for a debt due from the testator, could not set

off a debt due to himself ;* nor could a defendant, sued by an exec-
utor, set off a debt due from the executor in his own right.” There

owners of a horse, A exchanged it
with C, taking in exchange a mare
and C’s note for $30. B purchased of
A his interest in the mare, and gave
his note therefor, and O was solvent,

1 Fletcher v. Dyche, 2T. R. 82.

* Paynter ». Walker, B. N. P.
179; O’Halloran v. Studdert, 1 Ir. C.
L, 245; French v. Garner, 7 Port.
(Ala.) 549.

5 Wood »v. Akers, 2 Esp.
rough v. Moss, 10 B. & C. 558.
see 83 & 34 Vict. c. 98, § 12.

594; Bur-
And

and ready to pay his note at any time.
In an action by A against B on his
note it was held B might set off
his interest in the note of C to A for

$20. Dill v. Phillips, 13 Ala. 350.

ae Burrough v. Moss, 10 B. & C. 558,

5 Ord. 17, R. 4.

° Bishop v. Church, 3 Atk. 691.

" Willes, 263; Wood ». Hardy, 11
La, Ann, 760; Thomas v. Hopper, 5
Ala, 442.
Srt-orr. 179

used also to be many.cases in which *debts due from or to
the deceased could not be set off against claims in respect of
the testator’s estate. Debts due from the testator could not be set
off in reply to an action by the executor, for a cause arising after
the death of the testator, whether the executor sued in his own
name, as he might do,’ or as executor; because if in this way he
might retain money or goods received since the death, by merely
offering a set-off, the course of distribution would be altered, and he
might be paid before creditors of a superior nature.* Therefore, it
was held that to an action for money had and received by fhe
defendant to the use of the administrator, and on accounts stated
between them, a set-off of money lent by defendant to the intestate
could not be allowed.* The court said that in the case of actions by
or against an executor, it was as necessary as in the case of actions
between the principals “that the debts should originally have ex-
isted between the two living parties. The executor or administrator,
to come within the statute, must sue or be sued necessarily in his
representative character. If not, although he may be called execu-
tor, he is really a third party introduced (whereas it is essential that
there should be only two concerned) and the mutuality of the debts,
without which there can be no set-off, does not exist. Whether the
statute in either of its branches extends beyond its mere words to
the case of two mutual debtors both dying, and the representative
of the one suing the representative of the other, it is not necessary
now to decide. In the present case .... the money was not re-
ceived tothe use of the intestate. The intestate had no claim on’
the defendant in respect of this receipt, which took place after his
death ; he and the defandant never stood in the relation of mutual
debtors, to each other, and consequently there is no set-off between
the one and the representative of the other.” *

[*106]

1Shipman v. Thompson, Willes,
108. Such is now the rule in this
country. Burton», Chinn, Hurd (Ky.),
252; Dayhuff ». Dayhuff, 27 Ind. 158;
Wolfersberger v. Bucher, 10 8S. & R.
(Penn.) 10;. Bizzell v. Stone, 12 Ark.

Schofield v. Corbett, 11 Q. B. 779;
Lumbarde v. Older, 17 Beav. 542.

3 Rees v, Watts, 25 L. J. Ex. 30; 11
Ex. 410, affirming Watts v. Rees, 9
Ex. 696; 23 L, J. Ex. 238; followed
in Newell v. Nat. Prov. Bank of

378; Colby v. Colby, 2 N. H. 419;
Phillipe 0. Keifer, 2 Metc. (Ky.) 478;
Fry vo. Evans, 8 Wend. (N. Y.) 530.

? Kilvington v. Stevenson, Willes,
264, n.; Tegetmeyer v. Lumley, id. ;

England, 1 OC. P. D. 496; 45 L. J. C.
P. 285. ,

4 Rees v. Watts, 25 L. J. Ex. 80;
11 Ex. 410, affirming Watts v. Rees,
9 Ex. 696; 23 L. J. Ex. 268.
180 Sxt-oFF.

[#107] *It was held that to an action against an executor, on an

account stated with him of moneys due from him as executor,
a set-off might be pleaded of debts due from the plaintiff to the tes-
tator in his life-time.’ This decision seems principally to have rested
upon the idea that an account stated by an executor, as such, could
only have been stated in respect of a previously existing debt due
from the testator. Upon this ground the court of exchequer cham-
ber in the case last cited were willing to acquiesce in it, though they
expressed great doubts of its general soundness. They decidedly
overruled another decision of the queen’s bench, in which it had
been ruled that a defendant, sued as executor for a debt which ac-
erued due from the testator in his lifetime, might set off a debt
which accrued due to him as executor, since the death of the tes-
tator.*

Sec. 132. Present practice under the English statutes.

Claims by or against an executor or administrator, as such, may
now be joined with claims by or against him personally, provided
the last-mentioned claims arise with reference to the estate of the
testator or intestate.‘ It would seem, therefore, that all matters of
counter-claim which relate to the estate can now be set up against
claims made in respect of such estate.*

Sec. 133. Trustee.

It was formerly held that in an action by a trustee a debt due
from the person beneficially interested might be set off. These
cases, after being repeatedly doubted, were overruled,’ and the rule
laid down that none but legal rights could be regarded. Accordingly,
it was held that the assignee of a bond debt of the plaintiff could
not set it off in an action against himself, in his own right.* And
on the same principle, an executrix, sued upon a bond given by her

" Blakesley v. Smallwood, 8Q.B. Nat. Prov. Bank of England, 1 C0. P

538. D. 496; 45 L. J. C. P. 285, an admin-
?8ee per Hotroyp, J., Ashby v. istration suit is pending, and it would
Ashby, 7 B. & C. 444, 451. be contrary to the practice of the

3 Mardall ». Thelluson, 21 L.J.Q.B. Equity Division to allow the defend-
410; 18 Q. B. 857; after being thus ant’s claim, except by proof in the
overruled error was brought in this suit.
case, and the decision of the Queen’s " Bottomley v. Brooke, 1 T. R. 621;

bench reversed, 6 E. & B. 976. Rudge v. Birch, id. 622.
4 Ord. 17, R. 5. See, also, Ord. 16, T Isberg v. Bowden, 8 Ex. 852.
R. 7 8 Wake v. Tinkler, 16 East, 36.

‘6 Unless, indeed, as in Newell v.
SEr-orr. 181

testatrix to a trustee, *for payment of money to the use of S.,
was not allowed to set off a bond given by S. to another per-
son, who had made the testatrix his executrix and residuary legatee,
the defendant being herself executrix for her own benefit.! These
decisions, however, have lost their importance since the introduc-
tion of equitable defenses, which admit of set-off where the parties
to the cross debts are substantially the same, though nominally dif-
ferent.”

A judgment, obtained by a party merely as trustee, cannot be set
off against a judgment obtained against him in his indiyidual right.*
But where the real plaintiff in one action is the real defendant in
the other, the judgments may be set off against each other, though
the nominal parties are different.‘

(*108]

Sec. 134. Public bodies having banking accounts in different rights.

In a recent case a municipal corporation, being also the local
board of health under the Public Health Act, 1848, and Local Gov-
ernment Act, 1858, kept separate accounts at their banker’s for mu-
nicipal and local board affairs. Being sued for the amount over-
drawn on the latter account, they were held entitled to set off their
claim on the other account, which was in their favor.’ The ground
of the decision was, that this was not the case of two distinct
bodies, to whom debts were due in different rights: that the local
board of health was not a corporation at all, but merely a depart-
ment of the corporation, and that the corporation was debtor and
creditor in both cases, and in contemplation of law the same person
in both cases.

Sec. 135. Principal and agent where action is by principal. Case of broker
under del credere commission.

Where a factor, dealing for a principal, but concealing that prin-
cipal, delivers goods in his own name, the person contracting with

1 Tucker », Tucker, 4 B. & Ad. Ex. 425; Ferris v. Burton,1 Vt. 489.
745. 5 Pedder v. The Mayor, etc., of
* Cochrane ».Green, 9C. B.(N. 8.) Preston, 12 C. B. (N. 8S.) 585; 31 L.
448; 30 L.J. OC. P. 97; Agra and J.C. P. 291. See, for other exam-
Masterman’s Bank 0. Leighton, L. R., ples of setting off banking accounts,
2 Ex. 56; 86 L. J. Ex. 33. Ord.16, Bailey v. Finch, L. R., 7 Q. B. 34;

R. 7. Bailey ». Johnson, L. R., 6 Ex. 279;
3 Bristowe ». Needham, 7M.& G. 401. J. Ex. 109; affirmed, L. R., 7
648. Ex. 268; 41 L.J. Ex. 211,

4 Standeven ». Murgatroyd, 27 L. J.
182 Sxt-oFF.

him has a right to consider him to all intents and purposes as the
principal; and though the real principal appear and bring an action
upon that contract against the purchaser of the goods, ‘yet that pur-
chaser may set off any claim he may have against the factor in
[#109] answer to the demand *of the principal.’ But where the

purchaser has notice, at the time of the sale, that the factor
is acting as the agent of another, though he does not know who
that other is,” the case is different. He cannot set off a debt from
the factor against an action by the principal, though perhaps pay-
ment to him might be good, even though made prematurely.’ In
no case can such a set-off be allowed where the sale was made by a
broker. He is in a different position from a factor: he is not
trusted with the possession of the goods, and he ought not to sell
them in his own name. The principal, therefore, who trusts a
broker, has a right to expect that he will not sell them in his own
name.* ,

It is different, however, where the broker is acting under a del
credere commission. In such a case, he is to be considered, as be-
tween himself and the vendee, as the sole owner of the goods,*
Therefore, where the defendant, a broker, acting under such a com-
mission for A, sold his goods to B, for whom he had a commission
to purchase, and, without any order to that effect from B, paid the
price to A, and afterward was directed by B to resell the goods, it
was held, in an action brought by the assignees in bankruptcy of B
for the proceeds, that he might set off the money he had so paid
to A.*

1Rabone v. William, 7 T. R. 360, principal. Davis ». McKinney, 6

n.; George v. Clagett, id. 359; Borries
v. Imperial Ottoman Bank, L. R., 9
C. P. 88; 43 L. J.C. P. 3; Forney o.
Shipp, 4 Jones’ (N. C.) Law, 527,
contra.

*Semenza v. Brinsley, 18 C. B. (N.
8.) 467; 34 L. J. C. P. 161.

This is a necessary result of the rule
of law, that, where an agent does not
disclose his principal, the person deal-
ing with him may elect to hold either
the principal or the agent, but, where
the real principal is known to the
seller at the time, but the contract is
made in the name of the agent and
upon his credit, the contract is to be
treated as the individual contract of
the agent, exclusive of the actual

Coldw. (Tenn.) 15; Traub v. Milli-
ken, 57 Me. 68.

3 Fish 0. Kempton, 7 C. B. 687.
See Warner 0. M’Kay, 1M. & W.
591. Where the goods are bought
through an agent, notice to him is
notice to his principal, however the
notice may have been acquired. Dres-
ser v. Norwood, 17 C. B. (N. S.) 466;
34 L. J. C. P. 48, Ex. Ch.; over-
ruling 8. C., 14C. B. (N.S.) 574; 32
L. J. ©. P. 201.

4 Baring ». Corrie, 2 B. & A. 187;
recognized 7 C, B. 698.

i Houghton v. Matthews, 8 B. & P.

6 Morris v. Cleasby, 1 M. & 8. 576.
SEr-oFF. 183

Sec. 136. When action is by agent.

Where an auctioneer sold goods the property of A, and stated in
the catalogue to be so, a plea that he was suing in trust for A, and
that the defendant had a set-off against A, was admitted without
objection as an answer to an action by him,’ though it would have
been otherwise if he had a lien upon the goods for his charges, and
had not parted with them except on an express agreement that the
payment should be made to himself.* This distinction, however,
seems to have *been denied in a late case. The plaintiff sued [#110]
on a charter-party, to which defendant pleaded that plaintiff
entered into it as master of the ship, and agent for the owner, and
that he never had any beneficial interest in the charter-party, nor
any lien upon the freight, and that he was suing as agent and trus-
tee for the owner, against whom defendant had a set-off.. ‘The
plea was held bad on demurrer, aud the authority of the above
cases in support of the alleged doctrine was doubted.

Sec. 137. Companies.

Suits between incorporated companies and their members, or non-
members, are subject to the ordinary rules of set-off; but when
companies are being wound up by or under the supervision of the
court, the right of set-off of contributories is regulated by 25 & 26

Vict. ¢. 89, §$ 38, 101.°

1 Coppin ». Craig, 7 Taunt. 243.
See Coppin v. Walker, id. 237.

* Jarvis v. Chapple, 2 Chit. Rep.
387.

3 Isberg v. Bowden, 8 Ex. 852; but
see Holmes v, Tutton, 24 L. J. Q. B.
346.

4 See as to set-off in actions by and
against policy brokers, .4 Chit. Stat.
p. 172, 3d ed. :

5 Under these sections a debt due
from a limited company cannot, in
the event of the company’s being
wound up under the supervision of
the court, be set off against calls;
Grissell’s Case, L. R., 1 Ch. 528; 35 L.
J. Ch. 752; nor against debts incurred
by the defendant to the company
while in liquidation ; Sankey Brook
Coal Co. Lim. v. Marsh, L. R., 6 Ex.
185; 40 L. J. Ex. 125; and the same
rule applies where the company is
being voluntarily wound up; Black

and Co.’s Case, L. R., 8 Ch. 254; 42
L. J. Ch, 404, disapproving of Brigh-
ton Arcade Co. v. Dowling, L. R., 3
C. P. 175; 87 L. J. C. P. 125. See, as
to their application in case of the
bankruptcy of a contributory, Re
Duckworth, L. R., 2 Ch. 578; 36 L.
J. Bank. 28.

Certificates of stock, bonds, notes or
other negotiable securities, issued by
a corporation without the reservation
of a lien thereon for debts due the
company, are not subject, in the hands
of a bona fide holder, to a set-off in
favor of the company against the per-
son to whom they were originally is-
sued; Spence v. Whittaker, 3 Port.
(Ala.) 297; nor, unless so provided
by statute, can a corporation set off
in an action against it by a stockholder
to recover a debt due him from it, set
off unpaid assessments, made upon
stock held by the plaintiff. Cutler v.
184

Sec. 138. Equitable set-off.

Ser-orr uv Eaurry.

It may be worth while still to note that equity would sometimes

give relief where the party sued

Middlesex Factory Co.,14 Pick.(Mass.)
483.

In an action by a bank or other cor-
poration, debts due from it to the de-
‘fendant may be set off, if they existed
and were due at the time when the ac-
‘tion was brought, but the stock of the
corporation cannot be set off against
due debts to it. Whittinton vo. Far-
mers’ Bank, 5H. & J. (Md.) 489; Har-
per v. Calhoun, 8 Miss. 203.

The notes of an insolvent bank, held
‘by the defendant at the time when the ac-
tion was brought, may be set off, but
those subsequently acquired cannot be;
Diven v. Phelps, 34 Barb. (N. Y.) 224;
Butterworth v. Peck, 5 Bosw. (N. Y.
Sup. Ct.) 341; McCagg v. Woodman,
28 Ill. 84; Diven »v. Phelps, 34 Barb.
(N. Y.) 224; nor can such notes be set
off if the bank is in process of liquida-
tion under a statute that expressly or
impliedly excludes such set-off, nor if
the bank is solvent; Hallowell, etc.,
Bank v, Howard, 13 Mass. 235; Gee 2.
Bacon, 9 Ala. 699; Eastern Bank v.
Capron, 22 Conn. 639; nor in Louis-
jana, when the bank is being wound
up in insolvency, can he set off an
amount due him from the bank as a
depositor; French v. Stanton, 1 La.
Ann. 8; but it has been held otherwise
in Michigan ; Newberry v. Trowbridge,
13 Mich. 273; and in Massachusetts ;
Colt v. Brown, 12 Gray (Mass.), 233;
and in Rhode Island; Clarke v. Haw-
kins, 5 R. I. 219.

A dividend that will be due him
when the affairs of the bank are set-
tled is not a proper subject of set-off;
Ruckersville Bank ». Hemphill, 7 Ga.
396; but debts due him by the bank
before proceedings were commenced
against it in insolvency nave been held
allowable as an offset. Colt », Brown,
12 Gray (Mass.), 233. The notes of
a State bank, that subsequently organ-
izes as a national bank, cannot be
set off against a judgment obtained in
the name of the latter. Thorp v.
Wegefarth, 56 Penn. St. 82.

A depositor in a bank, as it was
about to suspend, obtained, on ac-
count of his deposit, from an officer, an

had a counter-claim which could

undue note which had been discount-
ed; and afterward receiving other se-
curities in excess of his deposit, paid
back part of the excess in bills of the
bank. In an action by him on the
note, it was held that the drawers
could not set off against the note bills
of the bank obtained after the plain-
tiff’s payment on account of the ex-
cess, except as to the balance remain-
ing; and as that balance arose out of
other securities subsequently given to
the plaintiff by the bank, and not
from the note, which securities were
not shown to have been fully paid, the
set-off as against that balance was not
admissible. Struthers v. Brown, 44
Penn. St. 469.

T. gave to the V. National Bank his
bond for $65,000, with warrant of
attorney to confess judgment, and at
the same time deposited $31,000 Uni-
ted States bonds as collateral. R. had
to his credit in the bank $43,000. The
bank being insolvent stopped payment.
On the next day R. assigned his de-
pe to T., and on the same day the

ank entered judgment against T. on
his bond. It was held that T. could
not set off the deposit against his in-
debtedness to the bank, as to allow
him to do so would secure him a pref-
erence over other creditors of the
bank, after the act of insolvency, and
would conflict with sections 50 and 52
of the act of congress of June 3, 1864,
relating to national banks. Venango,
etc., Bank v. Taylor, 56 Penn. St. 14.

Debtors of an insolvent bank in the
hands of a receiver are allowed to set
off debts due to them by the bank
while it is doing business, against the
debts due from them to the bank; but
not even the bills of the bank, pur-
chased by them after an injunction
has issued against it preliminary to its
winding up; and, especially, if the
debtor be a director of the bank, and
has purchased in the bills at a dis-
count, the allowance of such a set-off
being in derogation of the rule of equity
in payment established by the stat-
utes of the State. Clarke v. Hawkins,
5 R. I, 219.
Ser-orr 1x Eqorry. 185

not be set off at law.' Accordingly a plaintiff at law has been re-
strained from taking out execution on a judgment, where the defend-
ant had a judgment against him toa greater amount, which the
court of king’s bench refused to allow him to set off. The vice-
chancellor said that the lesser judgment was, in point of fact,
satisfied.’

This case, however, seems to have been treated as rather
*transcending the limits within which equity gave relief. [*111]
Lord Corrennam said: “This equitable set-off exists in cases
where the party seeking for the benefit of it can show some equi-
table ground for being protected against his adversary’s demands.
The mere existence of cross-demands is not sufficient, although it is
difficult to find any other ground for the order in Williams ».
Davies, as reported. In all the cases upon the subject, except Wil-
liams v. Davies, it will be found that the equity of the bill im-
peached the title to the legal demand.” * And so Lord Expow said,
“Where the court does not find a natural equity going beyond the
statute, the construction of the law is the same in equity as at

law.”

1 The counter-claim must have been
in respect of an ascertained sum; see
Kerr on Injunction, chap. 4, § 5, p.
66; 1 Joyce on Injunctions, 489.
Where there was a clear natural con-
nection between claim and counter-
claim, and both originated in one
transaction, a court of equity would
sometimes interfere to prevent the one
party from enforcing his claim with-
out allowing the claim of the other,
- even though it were unliquidated ; id.
67; and see cases cited there. See,
further, Throckmorton v.Crowley, L.
R., 3 Eq. 196; and as to set-off of
debts against legacies, Bousfield v.
Lawford, 1 DeG. J. &8. 459; Stam-
mers 0. Elliott, L. R., 3 Ch. 195; 37
L. J. Ch. 3538.

? Williams v. Davies, 2 Sim. 461.

3 Rawson »v. Samuel, Cr. & Ph. 178,
179, where all the cases are consid-
ered.

4 Ex parte Stephens, 11 Ves. 27.

A court of equity is not confined to
the terms of the statute of set-off, but
will allow a set-off to be made in a
case not within the statute, where
from peculiar circumstances justice

24

cannot be obtained by a cross-action.
Lindsay v. Jackson, 2 Paige’s Ch. (N.
Y.) 581; Jeffries », Hvans, 6 B. Monr.
(Ky.) 119. In such cases it will ex-
tend the doctrine beyond the law,
where peculiar equities intervene to
yequire it. Lee v. Lee, 31 Ga. 26;
Foot v. Ketchum, 15 Vt. 258.

The insolvency of one of the parties
is a sufficient ground for the exercise
of this equitable jurisdiction. Gay-
lord ». Couch, 5 Day (Conn.), 223.

Chancery sometimes decrees a set-
off independently of the statute; but
only where there are mutual debts
and some agreement, at least by im-
plication, for stoppage pro tanto, or
mutual credit. And in the absence
of all intervening equities, it puts the
same construction upon the statute as
a court of law does. Cave v. Webb,
22 Ala. 583; Jordan v. Jordan, 12
Ga, 77.

After a suit commenced in equity
by C. against H., C. brought an action
at law for damages for breach of cov-
enant. Prior to judgment he assigned
his damages sought to be recovered
in this action. Judgment was recov-
186

Ser-orr mv Egorry.

Sec. 139. Cross demand not sufficient, unless supported by some equity.

Hence the mere existence of a cross-demand, which was only
available in equity, was no ground for restraining an action at law;
unless there were also circumstances which made it inequitable that
the claim should be enforced at law, until the counter-claim in
equity was also enforced. An action for breach of an agreement to
make advances on shipments would not be restrained, pending a
bill for an account of advances already made.! Nor would an action
upon a note given in settlement of partnership claim be restrained,
pending a bill for an account of subsequent transactions.* Nor

ered in his favor; but meantime his
bill in chancery had been dismissed
with costs. It was held, that the de-
mand of H. for these costs could not
be set off against the judgment for
damages in the hands of the assignee,
if the assignment was valid and un-
satisfied. Hackett v. Connett, 2 Edw.
Ch, (N. Y.) 73.

"So, equity allows a set-off in cases
where in law it would not be allowed,
but to bring a case within this doc-
trine of equitable set-off, there must
* be some connection between the de-
mands. There must be mutual debits
and credits between the parties, so
that the balance only is the real debt
due.

Thus, rent due the lessor is not an
equitable set-off against a judgment
against him for a breach of the cov-
enant for quiet enjoyment; the de-
mands being distinct and independ-
ent, and not connected with each
other. Schermerhorn v. Anderson, 2
Barb. (N. Y.) 584.

A mere equitable right of set-off
may be enforced by a court of equity,
where special circumstances exist mak-
ing it inequitable not to do so, as insol-
vency, or impossibility of obtaining
relief at law; Ainslie 2. Boynton, 2
Barb, (N. Y.) 258; Simmons v. Wil-
liams, 27 Ala. 507; Dade v. Irwin, 2
How. (U. 8.) 883; but equity will not
entertain a bill to compel a set-off on
the ground of the defendant’s insol-
vency, where the defendant’s debt is
not due; although the complain-
ant’s is.

' Rawson v. Samuel, Cr. & Ph. 161.

Thus, where the complainants were
indebted to the defendant’s testator
in a sum, to recover which, the de-
fendant, as executor, brought an ac-
tion at law, and the complainants
thereupon filed their bill to compel a
set-off of certain notes given to them
by the testator, which were not yet
due, and to restrain the action at law,
it was held, that notwithstanding the
estate of the testator was insolvent,.
the bill could not be sustained. Brad-
ley v. Angel, 3 N. Y. 475.

The rule that one of two persons
mutually indebted may file a bill to
compel a set-off, if the debt owing to
himself is due, though the one owing
by himself is not due, if the other
party is insolvent, does not apply
when rights of third parties have in-
tervened. Nantucket Pacific Bank v.
Stebbins, 6 Duer (N. Y.), 341.

Chancery has jurisdiction of a suit
for the set-off of one judgment against
another; but, as the summary pro-
ceeding at law is preferable, it will,
in general, refuse costs to the com-
plainant. Gridley v. Garrison, 4
Paige’s Ch. (N. Y.) 647.

A defendant in foreclosure cannot
set-off against the mortgage-debt an
unliquidated claim for damages sus-
tained by an injunction in the suit.
Thompson v. Ellsworth, 1 Barb. Ch.
(N. Y.) 624. An equitable defense
may be set up as a counter-claim. At-
water v. Schenck, 9 Wis. 160; Curric
v. Cowles, 6 Bosw. (N. Y.) 452;
Leavenworth v. Packer, 52 Barb. (N.
Y.) 182,

? Preston v. Strutton, 1 Anst. 50.
Ser-orr mw Eaurry. 187

would a tenant who had obtained judgment against his landlord for
an excessive distress be enjoined against enforcing it, on the ground
that he had incurred a subsequent liability to his landlord for rent
and dilapidations.!

On the other hand the set-off was allowed in equity, though it
would have been bad at law, where the nature of the counter-claim
was such as to show that the legal demand was one which equity
would not allow to be enforced. For instance, when an agent
allowed his principal to build upon land, believing it to be his own,
and afterward brought a successful action of ejectment against him,
and then sued for mesne profits; it was held that the compensation
due to the principal for the loss of his buildings’ must be set off.
Because to that *extent he had a lien upon the land and upon
all that came from it.” And so where a running account ex-
isted between landlord and tenant, under which advances and sup-
plies made by the latter had gone in discharge of the rent, but no
receipts had ever been given; an action of ejectment for non-pay-
ment of rent was restrained, until an account was taken of the’ past
transactions. Because it depended upon this account, whether the
rent had ever been in default.”

[*119]

Sec. 140. Equity must have jurisdiction over subject-matter.

So where there were cross-demands of such a character, that if
both had been recoverable at law, they would have been the subject
of legal set-off, then, if either of the claims was of an equitable na-
ture, and equity had jurisdiction of the subject-matter, it would en-
force the set-off.’ For instance, various consignments of oil were
‘being carried to different persons in the same ship, and the oil
leaked out and was collected in one mass by the captain and sold
for 7507. The consignees agreed to divide this sum among them-
selves in proportion to their losses. Then the ship-owner sued the
consignees separately-for freight. No set-off could be maintained
at law. But a bill was filed by all the consignees for an account,
and equity being thus in possession of the entire transaction, the
actions were restrained, and a set-off allowed to the extent of the

' Maw v. Ulyatt, 31 L. J. Ch. 33. 305; Beasley v. D’Arcy, 2 Sch. & Lef.
*Lord Cawdor». Lewis, 1 Y.& ©. 403, n.
427, 4Clark ». Cort, Cr. & Ph. 154;

3 O'Connor »v. Spaight, 1 Sch. & Lef. Jones v. Kynnier, 5 Ves. 108.
188 Srerorr in Egorry.

proportions of the 750d. due to each consignee.! So in the follow-
ing case: G. assigned property on trust to sell and apply the pro-
ceeds in payment of whatever might be due from himself to whoever
might carry on the business of M. & Oo., his bankers. M. & Co.
transferred their business to the plaintiffs, and with it G.’s debt to
themselves. The plaintiffs employed G. as a builder and owed him
money. G. became bankrupt and his assignee sued the plaintiffs.
The plaintiffs filed a bill against the assignee to take an account of
what was due from G. after the sale of the property, and to set off
this debt against the other. Lord Corrzwuam doubted whether the
set-off could have been allowed on the mere ground that the plain-
tiffs were the assignees of a debt from G. to M. & Co., though he
[113] *gaid that the decision in Williams v. Davies* went further

than such a case would require. The plaintiffs, however,
were not merely assignees of the debt without the privity of the
debtor. They were assignees of the debt for whom the debtor
had contracted that the security should inure. They had a demand
against G. before he was bankrupt, in respect of which they were
entitled to sue in equity; therefore, they were entitled in equity to
set-off the legal debt which they owed to G.°

Sec. 141. Mere existence of cross demand not sufficient.

But equity would not take jurisdiction for the sole purpose of
enforcing a set-off, which was bad in law though under proper
circumstances it might be good in equity. As Jussrt, M. R., said in
a recent case, “The mere fact of the cross-demand existing would
not of itself give equitable jurisdiction, nor the mere fact that one
of the demands was held by a trustee; that is to say, that one of the
demands, though still a legal demand, was, as regards beneficial
ownership, the property of the person who was liable to the other
demand. I never heard of a bill to enforcé such a set-off.” ‘

Sec. 142, Equitable plea.

On the same principle, an equitable plea in a court of common
law was not allowed, where it merely set up a cross-claim for unli-
quidated damages, which was bad at law on that account, and which

1 Jones v. Moore, 4 Y. & C, 851. 4 Middleton » Pollock, L. R., 20
°2 Sim. 461. Eq. 29, 86, disapproving of dicta in
* Clark v, Cort, Or. & Ph. 154. Cochrane v, Green, 9 C. B. (N. 8.)

448; 30L. J.C. P.'97,
Ser-orr in Eaurry. 189

contained no ground in equity why the plaintiff should not enforce
his claim. For instance, where to an action for advances on goods,
defendant pleaded that the plaintiffs might have repaid themselves,
if they had not negligently sold under market price; for the money
dent was due at once, antecedent to any sale.’ To an action for freight,
that the defendant had been employed by the plaintiff as a barge-
man, and had lost a quantity of their goods; the goods so lost being
apparently quite different goods from those in respect of which the
freight was payable.’ To a breach of one covenant by a lessee, that
the lessor had broken another *and independent covenant, on 114]
a redemise by the lessee to him.°

Sec.143. Set-off against assignee.

The assignee of a debt takes it, subject to the debtor’s right to set
off debts which accrue due to him from theassignor before he has
notice of the assignment*; but not, in the absence of special circum-
stances showing a connection between the transactions out of which
the cross claims arise, debts which accrue due after such notice, even
though resulting from a contract entered into previously. Under
the Judicature Act, 1873, § 25, sub. 6, the assignment of a debt or
legal chose in action after express notice to the debtor or trustee,
passes the legal right subject to any equities which would have had
priority over the right of the assignee if the act had not been
passed.

Sec. 144, Exceptions to rule that debts must be mutual.
The rule that debts to be set off must arise in the same right pre-

vailed in equity as well as law.’

But where an administrator and

sole next of kin sued ona bond given to his intestate, and it appeared,

1 Atterbury v. Jarvie, 2 H. & N.
114; 26L. J. Ex. 178; Best v. Hill,
LR, 8C. P.10; 42L. J.C. P. 10.

2 Stimson »v. Hall, 1 H. & N. 881.

3 Minshull v. Oakes, 2H. & N. 7938;
27 L. J. Ex. 194,

4Cavendish v. Geaves, 24 Beav. 163;
27 L. J. Ch. 814; Wilson v. Gabriel, 4
B. & S. 243. But the debtors may, by
their original contract with the plain-
tiff, or by their subsequent dealings
with the assignees, deprive themselves
of the right of set-off; Higgs v. As-

sam Tea Co., limited, L. R., 4 Ex. 387;
38 L. J. Ex. 233; Dickson v. Swansea
Vale Ry. Co., L. R., 4 Q. B. 44; 38 L.
J. Q. B. 17.

5 Watson v. Mid-Wales Ry. Co., L.
R., 2.0. P. 5938; 36 L. J. C. P, 285;
Jeffryes v, Agra and Masterman’s
Bank, L. R., 2 Eq, 674; 385 L. J. Ch.
686.

6 Gale v, Luttrell, 1 Y. & J, 180;
Lambarde ». Older, 17 Beav. 542;
Middleton v. Pollock, L. R., 20 Eq.
29.
190 Sxr-orr iv Eaoprry.

from the state of the property, that he was in fact suing for his own
benefit, a set-off of a debt due from him in his own right was allowed.*
And vice versa, where an agent sued for the price of goods sold by
him for his principal, it was, if not a legal, at all events a good equit-
able defense, that his lien was satisfied, and that the defendant had
a set-off against the principal.’

Seo. 145. Joint debt set off against separate debt.

Although at law, too, a joint debt could not be set off against a
separate debt, where it was clearly proved that the joint debt arose
out of the same series of transactions as those which produced the
[115] separate debt, it might in equity. For instance, *where in

dealings between a customer and a bank, the joint debt to the

bank arose out of a joint promissory note, given by the father, and
the son as his surety, for advances; and the separate debt from the
bank arose out of a deposit of stock, made by the father as security
for the same series of loans, Lord Expow appeared to think that
equity would allow a set-off.° On the same principle, where the
joint debt was a bond by principal and surety, a separate debt due to
the principal might -be set off in equity, because the joint debt was
nothing more than a security for the separate debt ; and upon eqnit-
able considerations, a creditor, who had a joint security for a sepa-
rate debt, could not resort to that security without allowing what he
has received on the separate account, for which the other was a
security.“ And so where A & B, partners, gave a joint and several
bond to C, and C became indebted to A, and B became bankrupt ;
C proved the bond under the commission, and then brought a joint
action upon it against A & B, to which of course A could not plead
his set-off: it was held that C, by proving under the commission,
had elected to proceed severally upon his bond, and an injunction

was issued against the joint action.°

Sec. 146. Pleas in avoidance of circuity of action.

Something analogous to the statutory right of set-off was the

1 Jones v. Mossop, 3 Hare, 568. See ®Vulliamy 2. Noble, 3 Mer. 598,

Taylor v, Taylor, L. R., 20 Eq. 155; 618.

Bailey ». Finch, L. R., 7 Q. B. 34; 41 4 Bx parte Hanson, 12 Ves. 346; 18

L, J. Q. B. 83. id. 232, 8. C; and see Ex parte
> Holmes v. Tutton, 24 L. J, Q. B. Stephens, 11 Ves. 24,

346; and see Farebrother ». Welch- 5 Bradley v, Millar, 1 Rose, 273.

man, 3 Drew. 122; 24 L. J. Ch. 410.
Morvat Creprr i Banxrvrproy. 191

power which has always existed at common law, of setting off one
right of suit against another, for the sake of avoiding circuity of
action. This existed even where the right which was pleaded in
bar was a right to sue for unliquidated damages. It was absolutely
necessary, however, that the damages recoverable in each action
should be strictly identical, and should appear upon the record to be
80."

As to payments made by a tenant, which he may deduct from his
rent, see post, p. *228.

Sec. 147. Mutual credit in bankruptcy.

Set-off in bankruptcy is now regulated by the bankruptcy
*act, 1869, 32 & 33 Vict., ch. 71, § 389, which is as follows:
“Where there have been mutual credits, mutual debts, or other
mutual dealings between the bankrupt and any other person proving
or claiming to prove a debt under his bankruptcy, an account shall
be taken of what is due from the one party to the other in respect
of such mutual dealings, and the sum due from the one party shall
be set-off against any sum due from the other party; and the bal-
ance of such account, and no more, shall be claimed or paid on
either side respectively ; but a person shall not be entitled under
this section to claim the benefit of any set-off against the property
of a bankrupt in any case where he had, at the time of giving credit
to the bankrupt, notice of an act of bankruptcy committed by such
bankrupt, and available against him for adjudication.”

This clause only applies to a winding up of the estate as between
the bankrupt and the creditors.” And in case of a firm, there must
be a bankruptcy of the firm itself, and not merely of the individual
partners.”

There are some important differences between this statute and the
statutes of set-off. The introduction of the words “ mutual credits,”
“or other mutual dealings,” is one of the most remarkable.

(*116]

*See the cases collected, 2 Wms. J. Ex. 194; Schloss v. Heriot, 14 C.
Saund. 150; Ford v. Beech, 11 Q. B. B. (N.S.) 59; 32L. J. C. P. 211.
852; Belshaw v. Bush, 11 C. B. 191; 1 Turner v. Thomas, L, RB. 6 C. P.
Charles vo. Altin, 15 id. 46; 23 L. 610; De Mattos v. Saunders, L. R., 7
J.C. P. 197; Thompson v. Gillespy, ©. P. 570.

24 L. J. Q. B. 340; Alston », Herring, 2 Lond, Bomb. and Med. Bank 2.
11 Ex. 822; 25 L. J. Ex.177; Min- Narraway, L. R., 15 Hq. 98.
shull v. Oakes, 2 H. & N. 798; 27 L. 7
192 Morvat Orepir mv Banxruptcy

Sec. 148. Meaning of mutual credit.

Tt was early decided that mntual credit meant something more
extensive than mutual debt,! and it was finally settled, “ that mutual
credits, within the meaning of the bankrupt law, are credits which
must, in their nature, terminate in debts.”* That is credits which
have a natural tendency to terminate in claims not differing in nature
from a debt.’ .

Sec. 149. What is a credit.

An accommodation acceptance is a credit given by the acceptor to
the party accommodated *; and so is an accommodation indorsement,
which the indorser has been obliged to take up, even after bank-
117] ruptey.’ But although an *agreement to accept a bill creates

a credit, since the acceptance is itself a debt,’ an agreement
to indorse a bill does not, since it merely constitutes a suretyship.’
It has also been laid down that, whoever takes a bill must be con-
sidered as giving credit to the acceptor, and whoever takes a note,
credit to the drawer."

Sec. 150. Dealing with goods.

Any agreement, by which goods are to be dealt with by one party
for the benefit of another, will also create a credit. Therefore,
where the bankrupt intrusted the defendant, who was his creditor,
with a string of pearls to be sold by defendant, and the profits to
be paid to himself, and the defendant sold the pearls after bank-
ruptcy, it was held that he might set off his debt against an action
by the assignees for the proceeds.’ In another case, the bankrupt,
who was about to make a shipment, in which he wished his own
name not to appear, represented to the merchants through whom
the shipment was to be effected, that the goods were the defendant’s ;

* Ex parte Prescot, 1 Atk. 230.
2 Rose v. Hart, 8 Taunt. 499.
32 Sm. L. C. 276, 6th ed.

8 Per Bayuey, J., Collins v, Jones,
10 B. & C. 777, 782. It is not neces-
sary to constitute mutual credit that

‘Smith ». Hodson, 4 T. R. 2i1;
Russell v. Bell,8 M. & W. 277; Bittles-
ton v. Timmis, 1 C. B. 389.

5Hulme v. Muggleston, 3 M. & W.

30.

6 Gibson ». Bell, 1 Bing. N. C.
743.

7 Rose », Sims, 1B. & Ad. 521.

the parties both intended that there
should be mutual credit; therefore it
is sufficient, though the bill or note be
taken by indorsement from a third
party without the knowledge of the
acceptor or maker, Byles on Bills, p.
367, 10th ed.

* French v. Fenn, Cooke, B.L., 8th
ed., 565.
Morvat Crevir In Banxrvrtcy. 193

and induced the defendant to write to them to insure, and make
advances on the goods, which was done. It was held that this was
such a credit reposed in the defendant, as enabled him, when he had
got the proceeds of the goods, to set off a debt due from the bank-
rupt to him. Bay.ey, J., said that it amounted to a consent by the
bankrupt that the defendant should be considered the owner of the
goods, and that the money produced by the consignment should
pass through his hands. In that case he would have a right to deduct
from it the debt due to him.’ In a more recent case, running bills
were delivered to bankers for collection, the proceeds to be trans-
mitted to the depositors. It was held that this was a giving of credit
to the bankers.’

Sec. 151. Must be due in same right.

The debts to be set off against each other must also be dne in the
same right; therefore to an action for money had and *re- [118]
ceived to the use of the assignee, a set-off of money due from
the bankrupt is bad.* But it is otherwise where both debts accrued
due after the act of bankruptcy ;* or where the plea, while confess-
ing that the money was received to the use of the assignees, shows
that their title to it arose out of a credit given by the bankrupt ; for
then it appears that both debts were respectively due to and from
the estate.” Where one of several joint debtors becomes bankrupt,
the provisions of the statute have been held not to apply.’

Sec. 152. A mere trustee cannot set off.

There is a difference between this statute and those previously
discussed’ as to the degree of interest which must be had in the debt
from the bankrupt. The statutes of set-off are intended to prevent
cross-actions. If the debts are legal debts, due to each in his own

‘Hasum o. Cato, 5 B. & A. 861;
see Young v. Bank of Bengal, 1 Moo.
P. C. 150; explained, Alsager o. Cur-
tie, 12M. & W. 751, 757.

? Naoroji v. Chartered Bank of In-
dia, L. R., 30. P. 444; 37 L. J.C. PB.
224; see, further, ‘Astley v. Gurney, L.
R.,40. P. 714; 38 L. J .C. P. 357, in
Ex. Ch!

3 Groom v. Mealey, 2 Bing. N. C.
138; Wood v. Smith, 4 M. & W. 525;
Yates ». Sherrington, 11 id. 42; Gra-
ham »v. Allsopp, 3 Exch. 186.

25

4 Kinder ». Butterworth, 6 B. & C.
42.

5 Bittleston v. Timmis, 1 C. B. 389,
399, 400. See Bailey 2. Johnson, L.
R., 6 C. P. 279; affirmed, L. R., 70,
P. "263; 41 L. J.C. P. 2tt.

° New Quebrada Co., limited, ». Carr,
L. RB., 4.C. P. 651; 38'L. J. C. P. 283;
decided upon 12 &13 Vict.,. chap. 106,
§ 171.

14, ¢, the statutes of set-off.
194 Morvat Creprr in Banxruptcy.

right, it is sufficient, though the plaintiff or defendant may claim
their respective debts as a trustee for a third person. But under
the Bankrupt Acts, the mutual credit clause has not been so con-
strued. The object of this clause is not to avoid cross-actions, but
to do substantial justice between the parties, where a debt is really
due from the bankrupt to the debtor to his estate. It does not au-
thorize a set-off where the debt, though legally due from the bank-
rupt to the debtor, was really due to him as trustee for another ;
and though recoverable in a cross-action, would not have been
recovered for his own benefit.1 Therefore a defendant was not
allowed to set off the amount of a bill, in which he had no interest,
but which he had obtained in order to claim credit for the amount
against a debt owed by himself to the bankrupt acceptor.’ Nor the
amount of the bankrupt’s notes, which the defendant, a banker, had
received bona jide from his customers, but on condition that he was
[119] only to credit them with *the amount which was paid in

respect of them by the assignees; because he could gain
nothing in any event by the notes, but all the money received upon
them would be received to the use of the person who transferred
them.’ Buta broker insuring in his own name on behalf of an
undisclosed principal, for whom he acts on a det credere commission,
guaranteeing the solvency of the underwriter, has been considered
_ to have a real interest in the contract, sufficient to entitle him to set
off a loss against a claim of the assignees of a bankrupt underwriter
for unpaid premiums.’

Sec. 153. Credit must exist at time of bankruptcy.

Although, as we have seen, it is not necessary that there should be
an actual debt between the parties at the time of bankruptcy, since
possession of a bill not then due will be sufficient,’ the statute does
not apply unless the mutual credit existed at that time. Therefore,
where plaintiff and defendant were jointly entitled to the benefits
of a charter-party, and the plaintiff assigned his interest to a third

1 Per Qur., Forster v. Wilson, 12 M. 3 Forster v. Wilson, ubi sup.
& W. 191, 203. “Lee v. Bullen, 8 E. & B. 692, a;
? Fairv. M’Iver, 16 Hast,130; Belcher 27 L. J. Q. B. 161.
». Lloyd, 10 Bingh, 310; Lackington 5 Alsager v, Currie, 12 M. & W.
v. Combes, 6 Bing. N.C. 71; Lond. 751.
Bomb: & Med. Bk. », Narraway, L.
R., 15 E. Q. 93.
Motvat Crepir 1x Banxrvrroy. 195

party, giving notice of the assignment to the defendant, and after-
ward became bankrupt, it was decided that the assignment had put
an end to the credit, and therefore that it could not be the ground
of a set-off. But a mere nominal assignment of a debt, before the
bankruptcy of one of the parties to a mutual credit, would not alter
it.’

Sec. 154. Set-off not limited to debts.

A further difference between this section of the Bankruptcy Act,
1869, and the statutes of set-off, arises out of the provision which,
instead of restricting the set-off to debts in the strict legal sense of
the word, directs in wide terms, that where there have been mutual
credits, mutual debts, or other mutual dealings. between the bank-
rupt and any other person “proving or claiming to prove a debt
under his bankruptcy,” an account shall be taken, and the balance
paid. By section 4 of the same act,’ “ debt provable in bankruptcy,”
includes any “debt or liability ” by that act made provable in bank-
ruptcy ; and by section 31, with the exception of demands in the
nature of unliquidated damages arising otherwise than by reason of
a *contract or promise,* and of debts or liabilities, the value of
which the court may pronounce to be incapable of being fairly
estimated, all “debts and liabilities, present or future, certain or
contingent,” are to be deemed to be debts provable in bankruptcy ;
and the definition of the word “ liability” is, that it shall, for the
purposes of the act, “include any compensation for work or labor
done, any obligation or possibility of an obligation to pay
money, or money’s worth, on the breach of any express or im-
plied covenant, contract, agreement, or undertaking, whether
such breach does or does not occur, or is or is not likely to
occur, or capable of occurring, before the close of the bankruptcy ;
and generally it shall include any express or implied engagement,
agreement, or undertaking to pay, or capable of resulting in the pay-
ment of money or money’s worth, whether such payments be, as re-
spects amount, fixed or unliquidated ; as respects time, present or

[*120]

" Boyd v. Mangles, 16 M. & W. 387, 8 Ad. & El. 758; Buchanan ». Find-
344. lay, 9 B. & C. 788; Booth ». Hutchin-

? 32 & 83 Vict., ch. 71. son, L. R., 15 Eq. 30; West v. Baker,

2 See as to set-off in casesof un- 1 Ex. D. 44; Ex parte Waters, L. R.,
liquidated damages, Gibson v. Bell, 8 Ch. 562; Ex parte Peacock, id, 682.
1 Bing. N. C. 743; Groom v, West,
196 Morvat Creprr iw Banxruptoy.

future, certain or dependent on any one contingency, or on two or
more contingencies ; as to mode of valuation, capable of being as-
certained by fixed rules, or assessable only by a jury, or as matter of
opinion.” The repealed act, which made all debts and demands
which were provable against the estate of the bankrupt the subject
of set-off, contained clauses providing for the proof of debts pay-
able upon ‘a contingency, and liabilities to pay upon a contingency,
upon the construction of which there were numerous judicial
decisions; but the extensive words of the new act seem to have
been expressly intended to include cases which were held not to
come within those clauses, and, therefore, those decisions no longer
require notice here.!

Sec. 155. Case must admit of an account being taken.

It seems, however, that even now a, debt may be provable under
sections 4, 31, though it cannot, be set off under section 39. A policy-
holder in a life assurance company borrowed money from the com-
pany on his policy. Before the death of the assured the company
was wound up, and an estimated value was put upon the policy.
Afterward, the policy-holder filed *a petition for liquidation,
and a trustee was appointed. The official liquidator of the
company proved against, the estate of the policy-holder for the
amount. advanced.to him, and the trustee claimed to set off. the esti-
mated value of the policy. It was held that. he could not do so.
James, J., said: ‘ The mutual credit clause in the Bankruptcy Act,
1869, enlarged by these words ‘ mutual dealings,’ still requires that
there must be something of an account,to be taken of what is due
upon the one side and what is due upon the other. In that sense there
never was any thing due from the insurance company of which an
account could be taken.” And Menuisu, L. J., said: “I appre-
hend that the value of the policies is not a sum due at all, but it is
a sum which is arrived at under the winding up for the purpose of
regulating the proof of debts. But it never was a debt, nor is it a
sum which ever, in the proper sense of the word, would become
payable as for money due under the mutual credit clause; and I
think, therefore, that the liquidators are entitled to prove for the
full amount.” ? . :

[*121]

? They will be found, if required, * Ex parte Price, L. R., 10:Ch. 648.
in pp. 58-60, 1st ed.
Mourvat Orepir in Banxrvptoy. 197

Sec. 156. Set-off extinguishes debt.

In cases to which the statute applies, the effect of section 39 is to
make the set-off compulsory, so that the sum due by one party
operates as a payment, pro tanto, of the amount claimed by him.
And if he has a lien or security for the amount of his debt, as soon
as the set-off extinguishes the debt it also destroys the lien.!

1Ex parte Barnett, L. R., 9 Ch. 293, 297; 48 L. J. Bank. 87.
198 Liquipatep Damaces.

[* 129] *OHAPTER VIIL.

LIQUIDATED DAMAGES OR PENALTY.

Src. 157, Damages cannot exceed amount laid.

158. Nor amount liquidated by previous agreement.

159. Distinctions between penalty and liquidated damages.

160. Necessary to sue in form for liquidated damages, as such.

161. Where there is a penalty plaintiff may recover less or more than
the amount.

162. Same rules in equity.

163. Penalty, or liquidated damages, is a question of law.

164. A sum stated to be a penalty is prima facie so. So where smaller
sum is secured by agreement fora greater one.

165. Thompson v. Hudson.

166. Otherwise when greater sum is actually due.

167. Varying rates of interest.

168. Where there are several things to be done.

169. Kemble v. Farren.

170. Cases where damage from breach connot be measured.

171. Where there is only one event.

172. Use of the words ‘‘liquidated damage” not conclusive.

173. In cases of doubt; inclination in favor of penalty.

Sec. 157. Damages cannot exceed amount laid.

Before proceeding to discuss the rules of law, by which damages
are limited in the various forms of action, it will be necessary to
point out two cases in which they are limited by the acts of the
parties themselves,

The first case involves no difficulty. It arises out of the rule, that
the plaintiff cannot recover greater damages than he has claimed in
his declaration.’ It is said indeed by Lord Coxz,’ that in some cases
the plaintiff might have judgment for more damages than he has
counted for ; and this dictum was relied on by Len, O. J., in Ray v.
Lister.’ It has been pointed out, however, by Lord Exitensorovex,
that the mistake arose from a misconception of an old case in the
Year Books.* “It by no means establishes that the plaintiff may have

‘ Cheveley v. Morrison, 2 W. Bl. °10 Rep. 117 b.

1300; Watkins » Morgan,6 C.& P. * Andr, 384.
661. 48 Hen. VI. 5, a.
Ligumatrep Damagss. 199

more damages against the defendant than what he has counted for
against him, but that having counted in detinue against the defend-
ant for damages to a certain amount, he may recover against the
garnishee (against whom he has alleged no particular amount of
damages) a greater sum than he has laid as his damages against the

defendant.” !

Sec. 158. Nor amount liquidated by previous agreement.

The second case presents much greater difficulty. It is that in

which the parties to a contract, by previous agreement, fix*
the damages for its breach at a particular sum. Here the

[*123]

question at once arises, whether the sum so fixed ought to be regarded
as a penalty, or as liquidated damages.

Sec. 159. Distinctions between penalty and liquidated damages.

This distinction isa most important one, because where the sum
consists of the liquidated damages for breach of the agreement, fixed
and agreed upon between the parties, that very sum is the ascertained

damage, and the jury are confined to it.’

14M. &8. 99; 1 Roll. Abr. 578.

* Lowe »v. Peers, 4 Burr. 2229;
Crisdee vo. Bolton, 3 C. & P. 442,
overruling Randall »v. Everest, 2 id.
577.

The fact that the parties fix upon a
certain sum, and call it a ‘‘ penalty ”
or “liquidated damages ” does not de-
termine the question as to whether
the sum fixed is to be treated as a
penalty or liquidated damages, but
the question isalways one of construc-
tion, and, although the words of the
parties are to be taken as proved by
the writing exclusively, yet there may
be an inquiry into the matter of the
contract, the situation of the parties,
and the usages to which they may be
understood to refer as well as other
facts and circumstances of their con-
duct; Watts v. Sheppard, 2 Ala. 425;
Streeper v. Williams, 48 Penn. St. 450;
Durst v. Swift, 11 Tex. 273; Perkins
v. Lyman, 11 Mass. 76; Brewster ».
Edgerley, 13 N. H. 275; Hosmer 2.
True, 19 Barb. (N. Y.) 106; and in
determining the question the court
may resort to matter extraneous to the
writing. The terms applied by the
parties to the sum fixed upon is never

And if a verdict is given

decisive, though the parties may call
it a penalty, or give it no name what-
ever, the court in any and all such
cases treat the sum either as a penalty
or liquidated damages, according to
the nature of the agreement, the sur-
rounding circumstances, the intention
of the parties and the reason and jus-
tice of the case. Foley v. McKeegan, 4
Iowa, 1, but if it is doubtful how it
should be regarded, it will be treated
asa penalty. The tendency and pref-
erence of the law is to regard a sum
stated to be payable if a certain thing
is, or is not done, in the nature of a
penalty, unless such a construction is
clearly excluded; Cheddick ». Marsh,
21 N. J. Law, 463; Wallis v. Carpenter,
13 Allen (Mass.), 19; Baird 2. Tolli-
ver, 6 Humph. (Tenn.) 186; and it
will not permit the parties to make
that liquidated damages, by calling it
such in their contract, which in its
nature is clearly a penalty or forfeiture
fornon-performance. Thus, in a case
where A agreed to draw a certain
quantity of timber for B, at $1.50 per
thousand feet; $1 per thousand feet
to be-advanced, and the balance to be
held to secure the completion of the
200

Liguipatep Damages.

for a smaller sum,a new trial will be granted. And of course
equally so if the verdict were for a largersum. On the contrary,
where the sum is treated as a penalty, either more or less than the

amount stated may be recovered.

contract, or as “settled, fixed and
liquidated damages,” in case A failed
to perform his contract; it was held
that this sum was to be construed as
a penalty and not as liquidated dam-
ages, and that the recovery must be
proportional to the quantity of timber
which A failed to draw, and not of
the whole sum. Davis v. Freeman, 10
Mich, 188. See, also, Hallock v.
Slater, 9 Iowa, 599; Lord »v. Gaddis,
id. 265. In a California case A owed
B $5,000, and through his agent C
conveyed to B certain lands, partly to
pay this debt, partly to be sold by B
to distant parties. C made an abso-
lute deed to B, and took from him a
bond, in a penalty of $32,000, made

ayable to C, conditioned to pay him
B18, 168, together with one-half the
profits arising from a sale of the land,
or otherwise to reconvey the land to
C, within one year from date. Held,
that upon breach by B, C could not
recover $16, 168 as liquidated damages,
but only for damages sustained by the
breach, as in other cases of contract.
Ricketson v. Richardson, 19 Cal. 880.
Where an agreement contains several
stipulations on both sides, some of
them of such a character, that the
damages resulting from a breach
thereof could be easily estimated, and
others such that breaches of them
would be attended with losses diffi-
cult to be estimated, the sum specified
in the agreement to be paid for the
breach of any stipulation will be con-
strued to be a penalty, and not liqui-
dated damages.

There was a stipulation in a con-
tract, that ‘‘whosoever of the two
contracting parties breaks this con-
tract without sufficient cause, and
-which is contained in said contract,
has to pay to the other party the sum
of five hundred dollarsin cash.” Held,
that the sum thus stipulated to be

aid should be construed to be a
penalty, and not as liquidated dam-

ages. Hammer v. Breidenbach, 31

Mo. 49.

Where, in a contract for the per- |
formance of divers matters of very |

different values, a certain sum is fixed
as ‘‘liquidated damages” for failure
to perform any one of them alike, it
will be construed in law to be a pen-
alty, notwithstanding the words of
the contract. Daily v. Litchfield, 10
Mich. 29.

The lawful intention of the parties,
in a case free from fraud, will have
a decisive influence in determining
the question, but the intention must
be gathered from the whole contract,
and in reference to the nature of the
transaction. Gowen ». Gerrish, 15
Me. 273. This was well illustrated in
a New York case where the contract
stipulated that certain engines were
to be completed on or before a certain
day, under a forfeiture of one hun-
dred dollars a day until they were
completed—which was four months
after the day named—the court taking
into consideration the intention of the
parties, particularly as shown in the
use of the word ‘‘forfeiture;” the
improbability that such an extrava-
gant sum should be fixed as liquidated
damages for a possibly short delay, or
unimportant breach of the contract,
and the hardship that would follow
the rigid enforcement of the condi-
tion, held that the amount stipulated
should be treated as a penalty, and
not as liquidated damages. Colwell
», Lawrence, 88 N. ¥Y. 71. If a con-
tract is procured by fraud, the meas-
ure of damages for its breach fixed
thereon will not be allowed to pre-
vail. Wambaugh v. Bimer, 25 Ind.
368. The best test or criterion by
which to determine the question is the
uncertainty as to the extent of the
damage ; Powell ». Burroughs, 53
Penn. St. 322; and, in cases where
the injury cannot be estimated with
approximate certainty, the sum agreed

1 Farrant v. Olmius, 8 B. & A. 692.
Liguipatep Damaces.

201

Sec. 160. Necessary to sue in form for liquidated damages, as such.

Upon both of these points, however, there are some further nice-
ties to be observed. And first as to cases where the damages are
liquidated ; although the plaintiff is entitled to the exact sum, and

upon will be treated as liquidated
damages; otherwise as a penalty. In
Watts v. Sheppard, 2 Ala. 425, the
court expresses the rule substantially
as follows; where damages resulting
from the non-performance of a contract
are certain, and the sum expressed, in
one event would be too small, and in
another too large, it cannot be con-
sidered as liquidated damages, but,
where the damages are uncertain and
cannot be admeasured with any degree
of accuracy, the sum fixed upon will
be treated as liquidated damages. See,
also, Bright v. Rowland, 4 Miss. 398;
Mundy ». Culver, 18 Barb. (N. Y.)
336; Niver v. Rossman, 18 id. 50.
For this reason the doctrine of liqui-
dated damages is not applicable to
contracts for the payment of money.
Fitzpatrick »v. Cottingham, 14 Wis.
219; Gower v. Carter, 3 Iowa, 244.

In Cotheal ». Talmage, 9 N. Y. 551,
it was held that, when the damages
resulting from a breach of the contract
are very uncertain, and evidence of
their amount is very difficult to obtain,
and the fair import of the agreement
is, that the amount named in it is
specified and agreed on to save the ex-
pense and avoid the difficulty of prov-
ing the actual damage, and is not out
of proportion to the probable actual
damage, it will be regarded as liqui-
dated damage.

In an agreement consisting of sev-
eral stipulations, the damages for a
breach of which cannot be well ascer-
tained and valued, a certain sum, stip-
ulated to be paid for a breach of any
stipulation, is to be regarded as liqui-
dated damages. Thus, the owners
and occupants of real estate in a cer-
tain part of the city subscribed $11,-
000 to aid A in building a hotel there,
and the agreement between A and the
subscribers was deposited with C, for
the benefit of all parties; and A, upon
receiving payment of the amount of
this subscription, agreed, in case he
should fail to build the hotel within a
certain time, and in a certain manner,

26

to refund the money with interest, and
pay ‘‘full damages to the subscribers
for their trouble and disappointment ;”
and afterward, upon receiving notes of
some of the same persons and of oth-
ers for an additional like subscription
of $9,000, gave a bond to C, condi-
tioned, in case of failure to fulfill his
agreement, to pay to C on demand, for
the benefit of the original subscribers,
$11,000 with interest, to discharge the
subscribers of the second agreement
from all liability thereon, and to ‘fur-
ther pay to C, for the benefit of all the
subscribers, in proportion to the
amount of their subscriptions, the ad-
ditional sum of $20,000, not as a pen-
alty, but as fixed and liquidated dam-
ages, and subject to no deduction.” It
was held that this sum of $20,000 was
liquidated damages, and not a penalty;
and that,upon A’s breach of the agree-
ment, C might maintain an action
against him for a portion thereof equal
to the subscriptions of all those who
had waived any rights under the first
agreement, and had not settled and
released their claims upon A. Chase
». Allen, 13 Gray (Mass.) 42.

A and B made an agreement in
writing, by which A agreed, on or be-
fore a certain time, to sell and deliver
up all his stock and trade, and tools
used in manufacturing tin ware, to B,
at specified rates, which B agreed to
pay therefor. The agreement further
contained the following clause: ‘‘It
is also hereby agreed between the
parties, that in case either party shall
fail to comply with the terms of this
agreement, the party so failing shall
forfeit to the other party the sum of
three hundred dollars, which shall be
paid in full, on or before the forfeiture
as above.” Held, that on a failure by
B to perform the contract, he was lia-
ble for the full sum of $800, as liqui-
dated damages. Lynde v. Thompson,
2 Allen (Mass.), 456.

A contract for the sale of land, at
about $5,000, stipulated that the party
failing to perform should pay $200 as
202

Liguipatep Damages.

can in no case recover more, it seems he may recover less, or noth-
ing, unless he sues in form for the precise amount. Therefore where
the defendant covenanted not to lop any trees without the consent
of the plaintiff, under a penalty of 20J. for each tree over and above

‘‘fixed and settled damages;’’ and it
was held that this sum was liquidated
damages, and not a penalty. Brinker-
hoff v. Olp, 35 Barb. (IN. Y.) 27.

For instances in which the sum
fixed upon will be treated as liqui-
dated damages, see Grassell v. Low-
den, 11 Ohio St. 349, where a sum
agreed upon as damages, in case the
defendant failed to discontinue an ob-
noxious business, was held to be liqui-
dated damages; also, Pettis ». Bloom-
er, 21 How. Pr. (N. Y.) 327; also,
Watts vo. Sheppard, 2 Ala. 425;
where the same rule was adopted as to
asum agreed upon for a failure to per-
form certain work, by a certain time.
Myers ». Hay, 8 Mo. 98; where the
rule was applied as toagreed damages
for a breach of warranty; Duffy v.
Shockey, 11 Ind. 70; where the par-
ties agreed upon acertain sum asa
penalty, if the defendant should vio-
late his agreement not to set up his
trade ina certain place; also, Miller
v. Elliot, 1 Ind. 484; see, also, Dun-
lop ». Gregory, 10 N. Y. 241; Bra-
han v. Pope, 1 Stew. (Ala.) 135;
Alexander »v. Troutman, 1 Ga. 469;
Carter v. Corley, 23 Ala. 612. A
stipulation by a tenant to pay double
rent if he holds over, etc., is treated
as liquidated damages. Walker 2.
Engler, 80 Mo. 130. Where a person
contracts to deliver a certain quantity
of corn ata certain time, ‘‘ said corn
estimated at $100,” if he fails to de-
liver the corn the sum agreed upon
becomes due without any reference to
the actual value of the corn on the day
when it should have been delivered;
Hise v, Foster, 17 Iowa, 23; liquidated
damages are treated as a positive debt
and as such they exclude the consid-
eration and proof of actual damage;
Beale ».Hayes, 5 Sandf. (N. Y.) 640;
see Brown »v, Maulsby, 17 Ind. 10;
Hardee v. Howard, 33 Ga. 583; Ses-
sions ». Richmond, 1 R. I. 298;
Springdale, etc, Assn, v. Smith, 24
Ml. 480; Zachary v. Swanger, 1 Ore-
gon, 92.

Where several things are agreed to
be done, of different degrees of im-
portance, and a certain sum is agreed
upon as damages for a failure as to
either, the value of which is readily
ascertainable, the sum specified will
be treated as a penalty. Thorough-
good v. Walker, 2 Jones’ (N. C.) Law,
15; Carpenter ». Lockhart, 1 Ind.
434; Mundy »v. Culver, 18 Barb. (N.
Y.) 836; Jackson ». Baker, 2 Edw.
Ch. (N. Y.) 471; Owens ». Hodges, 1
McMull. (S. C.) 106; Bagley v. Peddie, 5
Sandf. (N. Y.) 192; Hammer ». Brei-
denbach, 31 Mo. 49; Daily v. Litch-
field, 10 Mich. 29; Basye ». Ambrose,
28 Mo. 39; Bagley v. Peddie, 5 Sandf.
(N. Y.) 192. In Nash ». Hermosilla,
9 Cal. 584, the defendant agreed to
build a brick building and to occupy
such portion of the lot as should be
satisfactory to the plaintiff, and give
him possession in three weeks, and a
lease for six months with the privilege
of twelve months, and failing to do
so to pay a certain sum as damages.
The court held that the sum fixed up-
on must be treated as a penalty to se-
cure the performance of the contract.
See, also, Goldsborough v. Baker, 3
Cr. (U.S. C. C.) 48, where, in a contract
to deliver a lot of stone, the parties
bound themselves, each to the other,
‘to pay, in case of failure by either,
the sum of $2,000, as stipulated dam-
ages, without abatement or diminu-
tion,’ and it was held that this was
merely a penalty. So Haldeman 2.
Jennings, 14 Ark. 829, where the de-
fendant entered into a contract to de-
liver to the plaintiff a lot of staves,
for which the plaintiff was to pay him
$400, and make certain advances, and
upon failure of either party to per-
form, it was agreed that the party
failing, should pay the other $500, the
sum agreed upon was held to be a
penalty, because it was unreasonable
and out of all proportion with the
probable actual damage. In Smith o.
Wainwright, 24 Vé. 97, A and others
bought of B his interest in and good-
.

Liguipatep Damaazs. 208

the actual value of the tree, and the plaintiff sued for breach of the
covenant not to lop,-without alleging non-payment of the 200.; it
was held that the covenant (even assuming the damage to be liqui-
dated) was alternative, not to lop, or, if he did, to pay liquidated
damages. “If then the plaintiff is seeking to recover liquidated
damages, he should have alleged, that, though the defendants lopped
the trees, they did not pay the stipulated amount ; otherwise it does
not follow that they have broken their covenant. We must assume
from this breach that the plaintiff is seeking to recover an unliqui-
dated amount, in which case the jury are at liberty to give such
damages as they think he has sustained.”! There the meaning of
the covenant was held to be, first, that the defendant would not lop
the trees; and, secondly, if he did, that he should pay a definite

amount.

will of the manufacturing and sale of
certain articles, within a certain dis-
trict, and gave notes to the amount of
$8,000 therefor, and B, at the same
time, executed to A and the others a
bond “in the penal sum of $10,000,”
conditioned to be void ‘‘if the said
B shall hereafter wholly refrain from
manufacturing and vending,” etc.,
and a breach of said condition by B
was proved. It was held that under
the circumstances of the case, the sum
so named in the bond was a penalty,
and not liquidated damages.

For other instances in which the
sum named in a contract has been
treated as a penalty merely, see
Shiell 7 McNitt, 9 Paige’s Ch. (N. Y.)
101; Lampman ». Cochran, 16 N. Y.
275; Laubenheimer v. Mann, 19 Wis.
519; Tayloe ». Sandiford, 7 Wheat.
(U. 8.) 18; Van Buren v. Digges, 11
How. (U. 8.) 461; Ricketson v. Richard-
son, 19 Cal. 330; Long o. Towl, 42
Mo. 545; Jaquith ». Hudson, 5 Mich.
123; Stearns v. Barrett, 1 Pick. Mass.)
443; Bearden v. Smith, 11 Rich. (8.
C.) L. 554; Brown». Bellows, 4 Pick.
(Mass.) 178; Shreve v. Brereton, 51
Penn. St. 175; Hughes »v. Fisher, 1
Miss. 516; Merrill v. Merrill, 15 Mass.
488; Moore »v. Platte Co., 8 Mo. 467;
Berry v. Wisdom, 3 Ohio St. 241; Burr o.

The plaintiff had therefore the option of suing generally

Todd, 41 Penn. St. 206; Higginson 2.
Weld, 14 Gray (Mass.), 165; Burrage
v. Crump, 3 Jones’ (N. C.) Law, 330;
Lane v. Wingate, 3 Ired. (N. C.) Law
326.

To summarize, it may be said that
where the damages are uncertain, and
not susceptible of ready ascertainment,
and the sum fixed upon as damages is
not unreasonable or unconscionable in
view of the probable damage, and,
from the whole contract, and the sur-
rounding circumstances, such appears
to have been the intention of the par-
ties, such sum will be treated as liqui-
dated damages, but, where the dam-
ages are certain, and susceptible of
ready ascertainment, or where the sum
fixed upon is out of all proportion with
the probable damages, it will be
treated as a penalty. If a different
rule was adopted, parties might agree
upon any sum they chose as damages,
for the non-payment of money, or the
non-performance of any contract, and
thus entail great hardship and unrea-
sonable burdens upon those who were
so unfortunate as to be unable to
perform their contracts. The dis-
tinctions made by the law ‘in this
respect are not only important, but
also necessary and just.

1 Hurst 2 Hurst, 4 Exch. 571; 19 L. J. Hx. 413.
904 Liguipatep DamaGEs.

for breach of the agreement, or specifically for the *sum [* 194]
agreed on. But when the covenant is, that the defendant

may doa thing, provided he pays a particular amount, there the
plaintiff can only sue for the amount stated, being the price put upon
the permitted act.!

Sec. 161. Where there is a penalty, plaintiff may recover less or more than the
amount.

In the next place, as to a penalty, there is a distinction according
to the mode in which the plaintiff sues, which may be well stated in
the words of Lord Mawsrietp: “ There isa difference between cove-
nants in general, and covenants secured by a penalty of forfeiture.
In the latter case, the obligee has his election. He may either bring
an action of debt for the penalty, and recover it (after which recov-
ery of the penalty he cannot resort to the covenant, because the pen-
alty is to be a satisfaction for the whole), or if he does not chose to
go for the penalty, he may proceed upon the covenant, and recover
more or less than the penalty, toties guoties.”* When the plaintiff
sues in form for the penalty, the jury cannot go beyond it; but
within it they may give him any compensation which he can prove
himself entitled to. On the other hand, where a charter-party was
secured by a penalty, it was ruled that upon breach the plaintiff had
his choice, either to receive the penalty, and rescind the contract,
or to bring anaction upon the contract, and let the covenant stand,
and so obtain greater damages than the penalty ;* though it would
have been otherwise if the agreement had been for liquidated
damages.°

Sec. 162. Same rules in equity.

The same distinction between a penalty and liquidated damages
prevails in equity. “It will relieve against a penalty upon a
compensation ; but where the covenant is ‘to pay a particular liqui-
dated sum,’ a court of equity cannot make a new covenant for a
man ; nor is there any room for compensation or relief. The speci-
fied sum is found in damages; it is a particular liquidated sum,

' Leigh o. Lillie, 6 H. & N. 165; 30 4 Winter v, Trimmer, 1 W. BI. 395;
L. J. Ex. 25. Harrison ». Wright, 13 East, 438,

* Lowe v. Peers, 4 Burr. 2228. Maylam ». Norris, 2 D. & L. 829.

* Wilbeam ». Ashton, 1 Camp. 78. 5°13 East, 345.
Or Penatry. 205

fixed and agreed on between the parties, and it is therefore the
proper quantum of damages.'

Sec.163. Penalty, or liquidated damages, is a question of law.

*The question, whether a sum mentioned in an agreement
tobe paid for a breach is to be treated as a penalty, or as
liquidated and ascertained damages, is a question of law to be de-
cided by the judge, upon a consideration of the whole instrument.’
And the principle upon which he is to proceed is, simply to ascertain
their real intention of the parties from the language they have used.*
The following rules are offered as aiding to ascertain that intention :

[* 195]

Sec. 164. A sum stated to be a penalty is prima facie so. So where smaller
sum is secured by agreement for a greater one.

1. Where the sum is expressly stated to be a penalty, and there
are no other words or circumstances altering, controlling, or affect-
ing this statement, the sum cannot be considered as liquidated
damages.* But where the agreement was, “ In consideration that A.,
of M., surgeon, will engage me, the undersigned B., as assistant to
him as surgeon, I, the said B., promise the said A., that I will not
at any time practice as surgeon at M., or within seven miles thereof,
under a penalty of 5002.,” this was held to be liquidated damages.
Cottman, J., said, * Although the word ‘penalty,’ which would
prima facie exclude the notion of stipulated damages, is used here,
yet we must look at the nature of the agreement and the surround-
ing circumstances, to see whether the parties intended the sum
mentioned to be a penalty or stipulated damages. Considering the
nature of this agreement, and the difficulty the plaintiff would be
underin showing what specific damage he had sustained from the
defendant’s breach of it, I think we can only reasonably construe it
to be a contract for stipulated and ascertained damages.”* And so
on a guarantee that a vessel in which the plaintiff had shipped goods,
should sail before any other vessel then in berth, “under penalty of

1 Per. Lord MansFieup, Lowe ». 5 Sainter ». Ferguson, 7 CO. B. 716,
Peers, ubi sup. 728. And see Leighton v. Wales, 3 M.

2 Sainter v. Ferguson, 7 C. B. 727. & W. 545; Parfitt’ ». Chambre, L. R.,

3 Dimech v. Corlett, 12 Moore’s P.C. 15 Hq. 36; 42 L. J. Ch. 6; Watts 0.
229; Reynolds v. Bridge, 6 E. & B. Sheppard, 2 Ala. 425; Robinson o.
528; 26 L. J. Q. B. 12. Cathcart, 2 Cr. (U. 8S. C. C.) 590;

. 4 Smith». Dickenson, 3 B. & P. 630; Davis v. Freeman, 10 Mich. 188.
Sloman v. Walter, 1 Bro. C. C. 418.
206

Liquripatep Damaass.

forfeiting one-half of the freight,” it was held that one-half of the
freight could be recovered as liquidated damages, without evidence

of actual damage.’

#196 Where the payment of a smaller sum is secured by a
[ ] *larger, the sum agreed for must always be considered as a
penalty.” And, therefore, where a contract to do, or abstain from

1 Sparrow 2. Paris, 7 H. & N. 594;
31 L. J. Ex. 137.

Upon the breach of a contract of
the owner of a vessel, that it shall
be at a foreign port ready to receive
goods to be there furnished, in which
it is agreed that the penalty for non-
performance by either party shall be
$2,200, the measure of damages is not
the amount named as a penalty, but
the difference between the stipulated
rate of freight and the current rate at
the port at the time when the vessel
should have been ready to receive her
cargo, and interest upon that sum, to
be computed from such a date as
would make proper allowance for the
time for loading and for ordinary de-
lay. Higginson v. Weld, 14 Gray
(Mass.), 165.

It is the tendency and preference of
the law to regard a sum stated to be
payable if acontract is not fulfilled as
a,penalty, and not as liquidated dam-
ages, Wallis ». Carpenter, 13 Allen
(Mass.), 19; Cheddick ». Marsh, 21
N. J. Law, 463; Baird ». Tolliver, 6
Humph. (Tenn.) 186.

2 Per CHaMBRE, J., Astley v. Wel-
don, 2B. & P. 354; per CoLmRIDGE,
J., Reynolds». Bridge, 6 H. & B. 528;
26L. J. Q. B. 12; Thoroughgood 2.
Walker, 2 Jones’ (N. C.) L. 15. In
Moore »v. Platte Co., 8 Mo. 467, A
agreed to do a certain piece of work
for $758, and gave a bond with sure-
ties to secure the performance of the
work for $1,570. It was held that the
sum named in the bond was to be
treated as a penalty, and only the ac-
tual damage could be recovered.
Lord 2. Gaddis, 9 Iowa, 265. In Hal-
deman ». Jennings, 14 Ark. 329, the
defendant was to deliver certain

roperty for $400, and if either party

ailed to perform, it was agreed that
$500 should be paid to the other
‘without abatement or diminution.”
It was held that the sum agreed upon

was only a penalty, as, otherwise, a
larger sum might become payable
on a failure to pay a less. But
this rule seems to have been ignored
in Cushing v. Drew, 97 Mass. 445,
where, in an action upon a contract,
by which the plaintiff sold the de-
fendant his horses, wagons, etc., and
good-will of an express business for
$650, and the plaintiff agreed to pay
the plaintiff $900 if he violated the
good-will part of the contract. It was
held that the $900 was to be treated
as liquidated damages. From this
case it would seem, that where the
damages likely to result from a breach
are so uncertain as not to be suscepti-
ble of approximate admeasurement, a
sum larger than that which forms the
consideration of the contract may be
recovered as liquidated damages. See,
also, Leary v. Lafflin, 101 Mass. 334.
In Chaseo. Allen, 138 Gray (Mass.), 43,
the owners and occupants of real estate
in a certain part of a city subscribed
$11,000 to aid A in building a hotel
there, and the agreement between A
and the subscribers was deposited
with C, for the benefit of all parties;
and A, upon receiving payment of the
amount of this subscription, agreed,
in case he should fail to build the
hotel within a certain time, and in a
certain manner, to refund the money
with interest, and pay ‘‘ full damages
to the subscribers for their trouble
and disappointment; ” and afterward,
upon receiving notes of some of the
same persons and of others for an ad-
ditional like subscription of $9,000,
gave a bond to C, conditioned, in case
of failure to fulfill his agreement, to
pay to C on demand, for the benefit
of the original subscribers, $11,000
with interest, to discharge the sub-
scribers of the second agreement from
all liability thereon, and to ‘‘ further
pay to ©, for the benefit of all the
subscribers, in proportion to the
Or Penatry. 207

something, is secured by an agreement to pay a fixed sum, and upon
the face of the same instrument a certain damage less than that sum
is made payable, in case of a breach of contract, that sum shall be
construed to be a penalty.! The facts in reference to which the above
rules were stated were as follows. There were mutual agreements
between the manager of a theater and an actress, that he should pay
her a certain weekly salary and traveling expenses, and that she
should perform at his theater, and comply with all its rules, and be
subject to and pay all fines; and that either of them neglecting to
perform that agreement should pay to the other 200). The action
was for a refusal to perform. It was held that the 2002. was a
penalty, otherwise a refusal to pay a trifling fine, or to do something
which by the rules of the theater was punishable by a fine, would
have entailed the entire liability.

Sec. 165. Thompson v. Hudson.

Thesame rule, substantially, was laid down by Lord Harsertey,
C.,in the case of Thompson v. Hudson,’ in the following words:
“Where there is a debt actually due, and in respect of that debt a
security is given, be it by way of mortgage, or be it by way of stip-
ulation, that in case of its not being paid, at the time appointed, a
larger sum shall become payable, and be paid, in either of those
cases equity regards the security that has been given as a mere pledge
for the debt, and it will not allow either a forfeiture of the property
pledged, or any augmentation of the debt as a penal provision; on
the ground that equity regards the contemplated forfeiture, which
might take place at law with reference to the estate, as in the nature
ofa penal provision, against which equity will relieve when the
object in view, namely, the securing of the debt, is attained; and
regarding also the stipulation for the payment of a larger sum of

amount of their subscriptions, the ad-
ditional sum of $20,000, not as a pen-
alty, but as fixed and liquidated
damages, and subject to no deduc-
tion.” It was held that this sum of
$20,000 was liquidated damages, and
not a penalty; and that, upon A’s
breach of the agreement, C might

' Per Lord Expon, id. 350.

maintain an action against him for
a portion thereof equal to the sub-
scriptions of all those who had waived
any rights under the first agreement,
and had not settled and released their
claims upon A. See, also, Lynde »v.
Thompson, 2 Allen (Mass.), 456.

°L. BR, 4H. L. J. 15.
208 LiquipatEep’ DamacEs.

money, if the sum be not paid at the time it is due, as a penalty and
a forfeiture against which equity will relieve.”

Sec. 166. Otherwise when greater sumis actually due.

But if the larger sum is actually due, and the creditor agrees *to
take a lesser sum, provided that sum is secured in a certain
way and paid on a certain day, and that if those stipulations
be not performed, he shall be entitled to recover the whole of the
original debt, such remitter to his original right does not constitute
a penalty, and a court of equity will not interfere to prevent it.!

[* 127]

Sec. 167. Varying rates of interest.

Upon this principle, “if a mortgagor agrees to pay 5 or 6 per
.cent interest, and the mortgagee agrees to take less, say 4 per cent,
if it is paid punctually, that is a perfectly good agreement; but if
the mortgage interest is at 4 per cent, and there is an agreement
that if it is not paid punctually 5 or 6 per cent interest shall, be
paid, that is in the nature of a penalty, which the court will relieve
against.” But ahigh rate of interest does not of itself constitute a
penalty. And if a contract provides that purchase-money shall bear
interest at one rate up to a particular date, at a higher rate up to a
further date, and at a still higher beyond that period, such a contract
is perfectly lawful, and will be enforced. And a proviso that these
stipulations shall not entitle the persons who are to pay the higher
rate of interest to delay the payment, rather tells against them than
for them.’ So- where an award directed that the defendant should
secure to the plaintiff an annuity of 1,2007. per annum within two
months, and if at the end of the second month the annuity was not

1 Thompson v.Hudson, L. R., 4 H.
L.1;38L.J. Ch. 431. This was de-
cided in the House of Lords in opposi-
tion to the master of the rolls and the
lords justices. Lord Wxsrsury said,.
that any plain man walking the streets
of London would have said that it was
in accordance with common sense, and
if he were told that it would be requi-
site to go to three tribunals before.
getting it accepted, would have held
up his hands with astonishment at the
state of the law. In Lord Ashtowno.
White, 11 Ir. L. R. 400, where a de-
mise of land at a yearly rent of 1877.,

with usual clauses for distress and en-
try on non-payment, contained an
agreement that so long as the lessee
performed the covenant, the lessor
would be content with the yearly rent
of 98/., payable: on the same days as
the first; reserved. rent, it was held that
the larger rent was not a penal rent,
and that ejectment could be main-
tained on its non-payment. Gower.
Carter, 3 Iowa, 244; Fitzpatrick o.
Cottingham, 14 Wis. 219.

* Per Lord Romruuy, M. R., Herbert
». Salisbury and Yeovil Ry. Co., L.
R., 2 Hq. 221-224.
Or PEnatry. 209

legally secured, should on the last day of that month, and of each
succeeding month until such annuity was legally secured, pay a fur-
ther sum of 1007. in addition to the payments due under the annu-
ity, “as a penalty for delay in the legal settlement of the same ;” it
was *held, upon default in securing the annuity, that the [#128]
plaintiff was entitled to the 1002. monthly in addition to the
full amount of the annuity."

Sec. 168. Where there are several things to be done.

It has. been laid down broadly, “that where articles contain cove-
nants for the performance of several things, and then one large sum
is stated _at the end to be paid upon breach of performance, that must
be considered a penalty.”” This, however, must be limited to cases
where it is apparent that the parties could not have intended the
entire sum to be the ascertained damages for any breach. “Where
the sum which is to be a security for the non-performance of an
agreement to do several acts, will, in case of breaches of the agree-
ment, be in some instances too large, and in others too small,acom- .
pensation for the injury thereby occasioned, that sum is to be con-
sidered as a penalty.” * And so, “where some of the stipulations in
a covenant are of a certain nature and amount, and some are of an
uncertain nature and amount, it would be right to say that, as the
sum could not be treated as liquidated damages in respect of oné or

’ Parfitt o Chambre, L. R., 15 Eq.

36; 42 L. J. Ch. 6.
. Similar in principle see Watts o.
Sheppard, 2 Ala. 425; Dunlop o. Greg-
ory, 10 N. Y. 241; Worrell o. Mc-
Clinaghan, 5 Strobh. (S. ©.) 115;
Pearson 0. Williams, 24 Wend. (N.
Y.) 244.

A clause in an agreement by H. to
repair certain houses for the sum of
$1,500, and have them completed, fit
for occupancy by December 1st, which
provides that ‘‘for each and every
day’s delay in the completion of said
houses after December ist, said H. is
to forfeit $5,” is to be construed as
fixing the amount of liquidated dam-
ages, and not as a penalty. Hall v.
Crowley, 5 Allen (Mass.), 304.

2 Per Heatu, J., 2B. & P. 353.

3 Per Bayuzey, J., Davies v. Penton,
6 B. & C. 223; affirmed, Horner 2.

27

Flintoff, 9 M. & W. 681; Dimech 2.
Corlett, 12 Moo. P. C. 229; Reindel

- 9. Schell, 4 C. B. (N. §.) 97; 27 L. J.

C. P. 146; Betts ». Burch, 4H. & N.
506; 28 L. J. Ex. 267, where see per
BraMwELL, B., as to the effect of 8 &
9 Will. III, chap. 11, § 8; Ex parte
Hulse, L. R., 8 Ch. 1022.

Where a man agreed to do three
things, of different degrees of impor-
tance, or pay $2,500 as stipulated dam-
ages, and the breach assigned was
omitting to do one.of the things, the
value of which was readily ascertaina-
ble, and was less than the sum speci-
fied as damages, the stipulation was
held to be a penalty. Thoroughgood
o. Walker, 2 Jones” (N. C.) Law, 15;
Daily v. Litchfield, 10 Mich.29; Ham-
mer v. Breidenbach, 31 Mo. 49; Bag-
ley », Peddie, 5 Sandf. (N. Y.) 192;
Watts v. Sheppard, ante,
210 Ligumatep Damages.

more of the stipulations, it ought not to be so treated in respect of
the others.”? This view of an agreement is invariably taken where
some of the breaches relate to pecuniary payments, which are in
their nature ascertained.

Sec. 168. Kemble v. Farren.

The leading case upon this part of the subject is that of Kemble
v. Farren.?, There the defendant had engaged to act as principal
comedian at Covent Garden for four seasons, conforming in all things
to the rules of the theater. The plaintiff was to pay him 31. 6s. 8d.
every night the theater was open, with other terms. The agreement
contained a clause that if either of the parties should neglect or re-
fuse to fulfill the said agreement, or any part thereof, or any stipula-
[#129] tion *therein contained, such party should pay to the other

the sum of 1,0002., to which sum it was thereby agreed that
the damages sustained by any such omission, etc., should amount;
and which sum was thereby declared by the said parties to be liqui-
dated and ascertained damages, and not a penalty, or penal sum, or
in the nature thereof. Notwithstanding these sweeping words, the
court decided that the sum must be taken to be a penalty, as it was
not limited to those breaches which were of an uncertain nature and
amount. And Trypan, C. J., said, “that avery large sum should
become immediately payable, in consequence of the non-payment of
a very small sum, and that the former should not be considered a
penalty, appears to be a contradiction in terms; the case being pre-
cisely that in which courts of equity have always relieved, and
against which courts of law have in modern times endeavored to
relieve, by directing juries to assess the real damages sustained by
breach of the agreement.”* And the same decision was arrived at

1 Per CoLERIDGE, J., Reynolds ». so in express terms; and if that be

pnage 6 E. & B. 528; "261. J J. Q.B. done, I do not see how the courts can

avoid giving effect to such a con-

*, 6 Bing. 141. See per Lord Wesr- tract.” But see per Lord HarHERLEy

Bury, L. R., 4H. L. 30. in Thompson ». Hudson, L. R., 4 H.
*6 Bing. 148, Such an agreement, LL. 15; ante, 208.

however, it has been said, might be
made, for it is laid, down by PaRKE,
B., 1 Exch. 665, “that it would be
competent for the parties to make a
stipulation to pay a certain sum on
the non-performance of a covenant to
pay a smaller sum; but they must do

Where the parties fix the price by
contract, the contract price, and not a
quantum meruit, is the measure of
damages; Holmes v. Holmes, 12 Barb.
(N. Y.) 187; Springdale, etc., Ass’n.
v. Smith, 24 Ill. 480; Zachary 2,
Swanger, 1 Oreg. 92; Irwin o, Tanner,
Or Pewnatry. 211

where the agreement was that the defendant should grant a lease,
and the plaintiff should execute a counterpart and pay the expenses,
for the mutual performance of which contract the parties bound
themselves in the penalty of 5002. to be recovered against the defaul-
ter as liquidated damages.’

Sec. 170. Cases where damage from breach cannot be measured.

On the other hand, if there be a contract consisting of one or
more stipulations, the breach of which cannot be measured, then the
contract must be taken to have meant that the sum agreed on was
to be liquidated damages, and not a penalty.” A common instance
is the case of agreements between professional men, binding a
retiring partner, or an apprenctice or *clerk, not to interfere
with the business of the other. For example, where a cove-
nant for dissolution of partnership between attorneys contained an
agreement, “ that the said J. S. will not within the next seven years
carry on the business of an attorney within fifty miles from E., nor
interfere with, solicit, or influence the clients of the late copartner-
ship, and if the said J. S. shall in any respect infringe the present
covenant, he, the said J. S., shall pay the sum of 1,0002. as liqui-
dated damages, and not by way of penalty,” the contract was liter-
ally enforced.*

[*130]

1 Mo. 210; but if a sum is agreed
upon, not as the price of property,
but as damages in case a certain
thing is or is not done, the question
as to whether that sum shall be re-

1 Boys v. Ancell, 5 Bingh. N. C.
390; Davies v. Penton, 6B. & C. 216;
Charrington v Laing, 6 Bingh.’ 242:
Beckham ». Drake, 8 M. & W. 846:
Magee v. Lavell, L. R., 9 C. P. 107;
43 L. J. C. P. 131; In re Newman,
4 Ch. D. 724; 46 L..J. Bk. 57.

2 Per ParkE, B., Atkyns v. Kinnier,
4 Exch. 776, 783. So, where a speci-
fied increased rent was to become
payable on breach of any of the cove-
nants in the lease. Smith v. Ryan, 9
Tr. L. R. 235.

3 Galsworthy ». Strutt, 1 Exch. 659;
Rawlinson ». Clarke, 14 M. & W. 187.
So Reynolds o. Bridge, 6 E. & B. 528;
26 L. J. Q. B. 12. And where the
form of the bond, given upon the sale

covered as damages, depends upon
whether the damages were uncertain,
whether the sum is reasonable, the
parties intended it as such, etc.

of a medical practice, was that if any
of certain prohibited things were
done, and the sum of 3007. paid, then
the bond should be void; that sum
was held recoverable upon an infrac-
tion of the agreement. Mercer 9.
Irving, E. B. & E. 563; 27 L. J. Q.B.
291. But it does not follow in every
such case, that a man may elect to
break his engagement by paying for
his violation of the contract. There-
fore, where the condition of a bond
given by a managing clerk to an at-
torney, after reciting an agreement
that the clerk should give a bond not
to practice within a specified distance,
was that if he did so practice, and.
should pay the sum of 1,0007., the
912 Liguipatep Damages.

Sec. 171. Where there is only one event.

There never was any doubt that if there be only one event upon
which the money is to become payable, and there is no adequate
means of ascertaining the precise damage that may result to the
plaintiff from the breach of the contract, it is perfectly competent
to the parties to fix a given amount of compensation, in order to
avoid the difficulty.!. And this, even though the contract be one of
indemnity, as an insurance policy, and it can be proved that the
plaintiff has not been damnified to the amount estimated.” And so
it has been repeatedly held, that where, upon a contract of sale, a
sum of money is deposited by the purchaser, with a stipulation that
it is to be forfeited on his failure to perform the contract, the ven-
dor is entitled to retain it, even though he has suffered less dam-
age or none.°

Sec. 172. Use of the words “liquidated damage” not conclusive.

[131] *The cases cited above* have overruled the doctrine laid

down in Riley v. Jones,* that the mere use of the words
“liquidated damages”’ is decisive against the sum being held to be
a penalty. The principle is, that although the parties may have
used the term “liquidated damages,” yet if the court can see upon
the whole of the instrument taken together, that there was no inten-
tion that the entire sum should be paid absolutely on non-perform-

bond should be void, a court of
equity, carrying out the real intention

- of the parties, granted an injunction
to prevent him from practicing.
Howard v. Woodward, 34 L. J. Ch.
47; Jones v, Heavens, 4 Ch. D. 636.
But of course this was upon the plain-
tiff’s undertaking not to sue upon the
bond. A man cannot have his liqui-
dated damages and his writ of injunc-
tion also. Carnes »o. Nesbitt, 7H. &
N. 158; 30 L. J. Ex. 348.

, | Per Onesswe11, J., Sainter o. Fer-
guson, 7 C. B, 730; Fletcher v. Dyche,
2 T. R. 32. Sparrow ». Paris, 7 H.
& N. 594; 81 L. J. Ex. 187,

3 Irving o. Manning, 6 C. B. 391.

In Dakin », Williams, 17 Wend. (N.
Y.) 447, the plaintiff gave $3,000 for
the patronage and good will of a
newspaper, and $500 for the type,
etc., and the vendors covenanted that
they would not publish a rival paper,
etc., and fixed the measure of dam-
ages at $3,000. The court held that
it was to be treated as liquidated dam-
ages. See, also, Cushing v. Drew, 97
ra 445; Leary v. Laflin, 101 Mass.

* Reilly v. Jones, 1 Bingh. 302;
Hinton ». Sparkes, L. R., 3 C. P. 161;
87 L. J. C. P. 8; Lea v. Whitaker, L.
R., 80. P. 70.

4 Ante, p. 205, et seq.

° 1 Bingh. 302, '
Or Penatry.

213

ance of any of the stipulations of the deed, they will reject the
words and consider it as being in the nature of a penalty only.?

Sec. 173. In cases of doubt, inclination in favor of penalty.

Where it is doubtful from the terms of the contract, whether the
parties meant that the sum should be a penalty or liquidated dam-
ages, the inclination of the court will be to view it as a penalty.”
But the mere largeness of the amount fixed will not, per se, be
sufficient reason for holding it to be so.*

1 Per ParkE, B., Green a. Price, 13
M. & W. 701; affirmed, 16 M. & W.
346; Cole v. Sims, 23 L. J. Ch. 258.
The use of the expression ‘‘ penalty,”
or ‘‘liquidated damages,” signifies
nothing, the real intention of the par-
ties having to be ascertained. See
Sparrow v. Paris, 7H. & N. 594; 81
L. J. Ex. 137; per BramMwewu, B.,
Betts v. Burch, 4 H. & N. 510; 28 L.
J. Ex. 271; Dimech 2. Corlett, 12

Moo. P. ©. 299; Magee v. Lavell, L.
RB. 90. P. 107;'43 L. J. ©. P. ist.

? Barton v. Glover, Holt’s N. P. C.
48; Crisdee v. Bolton, 8 C. & P. 248.
3Td., and per Lord Expon, Astley
» Weldon, 2 B. & P. 3851; and per
Lord Romruty, Herbert v. Salisbury
and Yeovil Ry. Co., L. R., 2 Hq. 224.
214

s

[#139]

Sec. 174..
175.
176.
177.
178,
179.
180.
181.

182.
183.
184.
185.
186.
187.
188.
189.
190.
191.
192.
198.
194.
195.
196.
197.

InTEREST.

*CHAPTER IX.

INTEREST.

Interest at common law.

On bills and notes.

Express agreement.

Implied agreement. Compound interest.
Where payment to be made.

.A question of fact.

Bond with a penalty..

Money payable on a fixed day. Awards. Interest recoverable as
damages.

Cases in which interest is not recoverable.

‘Foreign judgment.

Partners,

Tender; payment into court.

Time up to which interest is computed.

Rate of interest.

Interest by statute.

Meaning of word “ certain.”

Notice of action. :

Written instrument by virtue of which a debt is payable,
Discretion of jury.

Jury only can give interest.

Interest upon judgments.

Time from which it runs,

Equitable claims.

Interest on money refunded where decree reversed.

Sec. 174. Interest at common law.

The next point of a preliminary nature which requires notice is
the right to recover interest. This right exists in a great number
” of actions, but I have thought it better, for the sake of clearness, to
place the whole subject before the reader in a single view.

Interest is recoverable, either upon the original cause of action,
or again upon the amount of the judgment. It may also arise either
at common law, or by statute.

I. First, then, as.to interest at common law upon the original
cause of action.
’

INTEREST.

215

It is now established as a general principle, that interest is allowed
by law only upon mercantile securities, or in those cases where there
has been an express promise to pay interest, or where such promise
is to be implied from the usage of trade, or other circumstances. !

1 Per Apsott, C. J., Higgins v.
Sargent, 2B. & C. 349; per Hau, V.
C., Hill » South Staffordshire Ry.
Co., L. R., 18 Eq. 154, 167; 43 L. J.
Ch. 556.

What rate of interest is chargeable. —
The rate of interest to be allowed
upon demands, contracts, etc., is regu-
lated by the statutes of the different
States, and in the absence of any agree-
ment interest is not allowable wntil the
period of credit has expired, as a note
for thirty days, or thirty years even,
bears no interest unless so expressed
in the instrument; Meech v. Smith, 7
Wend. (N. Y.) 315; Bate o. Burr, 4
Harr. (Del.) 130; Potter o. Gardner, 5
Pet. (U. 8.) 718; Buchanan 0. Lee-
right, 1 H. & M. (Va.) 211; but after
maturity, interest attaches at the legal
rate, if the note is not paid. Van
Giesen ». Van Hotton, 5 N. J. Law,
822; Simpson v. McMillion,1 N. & M.
(8.C.) 192; Letchford ». Starns, 16 La.
Ann. 252; Daggett o. Pratt, 15 Mass.
177.

On what ground, and when aillow-
able, — Interest is allowed only on the
ground of contract or usage, and
where there is no contract, express or
implied, or usage, or time fixed for
payment, it is not allowed until the
debtor has been put in default, and is
to be computed only from the time of
default. National Lancers ». Lover-
ing, 30 N. H. 511; Gay ». Gardner, 54
Me. 477; Whitworth v. Hart, 22 Ala.
343 ;Beardslee ». Horton, 3 Mich. 560;
Hubbard v. Charlestown, etc., R. R.
Co., 11 Metc. (Mass.) 124; Myers o.
Walker, 24. Ill. 183.

A note payable on demand, con-
taining no stipulation as‘ to interest,
will not bear interest until demand is
made, and then only from the date of
demand; Schmidt ». Limehouse, 2
Bailey (8. C.), 276; Bishop v. Sniffen,
1 Daly (N. Y. ©. P.), 155; but in Ar-
kansas; Pullen v. Chase, 4 Ark, 210;
and Ohio; Darling ». Wooster, 9 Ohio
St. 517; notes payable on demand are
held to bear interest from their date,

without a demand having been previ-
ously made. Interest is sometimes
agreed upon as a penalty for not pay-
ing money within a certain time.
Thus, a note payable at a future time,
‘and if not paid on that day, with in-
terest from date,” draws on interest if
paid at maturity, but if not so paid it
draws interest from date, as such con-
tracts are not repugnant to the law.
Gully ». Remy, 1 Blackf. (Ind.) 69;
Parvin v. Hoopes, 1 Morr. (Lowa) 294;
Billingsly v. Cahoon, 7 Ind. 184; Sat-
terwhite ». McKie, Harp. (8. C.) 397;
Horner v. Hunt, 1 Blackf. (Ind.) 218.

It may be stated as a general rulein
this country, that interest is chargea-
ble from the time when the principal
ought to have been paid. Adams v. Fort
Plain Bank, 36 N. Y. 255; Williams v.
Sherman, 7 Wend. (N. Y.) 109; Still
v. Hall, 20 id. 51. If atime for pay-
ment is agreed upon, interest attaches
from the day when the debtor, by his
agreement, ought to have paid, as the
law implies a promise to pay interest,
if the principal is not paid at maturity.
Stuart v. Binsse, 10 Bos. (N. Y.) 436;
Clark v. Barlow, 4 Johns. (N. Y.), 183;
Crane v. Hardman,4 E, D. 8. (N.Y. C. P.}
448; Honore v. Murray, 3 Dana (Ky.),
31. Where no time for payment is
agreed upon, and no usage, general or
special, is established, interest is not
chargeabie until after demand. In
other words, until the other party is
put in default. Beardslee v. Horton,
3 Mich. 560;, Gay ». Gardner, 54 Me.
477; Washington v. Planters’ Bank, 2
Miss. 230. Interest is not allowed on
running and unliquidated accounts for
goods sold, work and labor done., etc.,
unless there is an agreement, express
or implied, to pay it, and, if a certain
time of credit is agreed upon, a prom-
ise to pay interest after the expiration
of that time is implied; and upon mu-
tual cash accounts, interest is charge-
able from the date of each item, unless
excluded by contract or the course of
dealing. Ried »v. Rensselaer Glass
Factory, 38 Cow. (N. Y.) 393; Kane o.
216

Sec. 175. On bills and notes.

INTEREST.

As to the case of bills of exchange and promissory notes, this rule
has never been doubted. Some distinctions, however, prevail as to

the time from which interest is

Smith, 12 Johns (N. Y.), 156; Crosby
v. Otis, 32 Me. 256; Esterly v. Cole, 3
N. Y. 502; Knight v. Mitchell, 3 Brev.
(8. C.) 506; Tucker v. Ives, 6 Cow.
193; Walden vo. Sherburne, 15 Johns,
(N. Y.) 409. Where usage has fixed
a specific time, after which book ac-
counts bear interest, it well control,
and the interest need not be demanded
in the complaint. Adams »v. Palmer,
30 Penn. St. 346. Thus, upon an ac-
count current between a wholesale
merchant and a customer, interest is
chargeable upon the amount of each
sale after six months from the date of
each sale,such being the usage. Koons
». Miller, 3 W. & 8. (Penn.) 271. So
where there have been running ac-
counts between parties, and one party
has been in the habit of transmitting
his accounts regularly to the other,
striking a balance, and charging or
giving credits for interest, as the bal-
ance might be, and no objections have
been made, and this mode of stating
accounts is shown to be the custom of
trade, that manner of charging inter-
est will be sustained. Barclay 0. Ken-
nedy, 3 Wash. (Va.) 350; Raymond 2.
Isham, 8 Vt. 263; Bispham 2. Pollock,
1 McLean (U. §.), 411. So where a
person is shown to be acquainted with
the usage of a person to charge inter-
est after thirty, forty, ninety, or any
other number of days, persons so deal-
ing with him, are bound by the usage.
McAllister v. Reab, 4Wend.(N.Y.) 483.
In Mississippi interest is held to be
chargeable on an open account, though
no agreement to pay interest is shown.
Houston v. Crutcher, 31 Miss. 51. In
Iowa, after demand for payment has
been made. David v, Conard, 1
Greene (Iowa), 336. In Alabama,
after the account becomes due. Moore
v. Patton, 2 Port. (Ala.) 451. So in
New York. Carpenter v. Brand, 40
N.Y. Sup. Ct. 551. In South Caro-
lina, Georgia and Vermont, interest is
allowable after the account has been
balanced and the balance acknowl-
edged; Barrelli v. Brown, 1 McCord

to be computed, and the rate at

(S. C.), 449; Hicks v. Thomas, Dudley
(Ga.), 218; Williams v. Finney, 16 Vt.
297; and in Illinois, by statute, inter-
est is not chargeable on an open ac-
count, unless it has been liquidated
and a balance agreed upon. Bishop,
etc., Colony v. Edgerton, 26 Ill. 54;
Flake v. Carson, 33 id. 518. In Ver-
mont, interest is chargeable upon a
balance of account from a reasonable
time after it accrued, and the same
rule prevails in New Jersey. Bates 2.
Starr, 2 Vt. 586; Wills o. Brown, 3
N. J. Law, 548.

Where a part owner of a vessel had
a running account with a shipwright
who worked thereon, and the balance,
on settlement was in favor of such
owner, and he received the ship-
wright’s note for the balance, no in-
terest being charged on either side of
the account, and it did not appear that
such owner ever paid any money to the
shipwright, such owner, in a suit
against the other owner for contribu-
tion, was held not entitled to interest
on his account against the shipwright,
previously to the time of the settle-
ment of their accounts. But where
such part owner gave his notes to the
shipwright, payable, with interest,
after six months from the times when
the work was done, and they were re-
ceived indischarge of the bills for the
work, he was held entitled to recover
interest of the other owner from the
time when such notes became payable,
though he did not enter those bills on
his book till long afterward.

So where one of two joint owners of
vessels and cargoes took charge of the
vessels and their outfits and repairs,
and the other attended to the providing
of the cargoes and settling for them,
and they agreed that interest should
be cast on their accounts, the neglect of
one of them, for a long time, to render
his accounts to the other, though fre-
quently requested, does not deprive
him of the right to interest on his ac-
counts, when afterward rendered,
Winsor v. Savage, 9 Metc. (Mass.) 346,
INTEREST.

217

which it is to be calculated, where any part of the contract has
been entered into abroad. This subject will be discussed at length,

post, chap. VIII.

‘Where no time is agreed upon for
payment for personal services, and no
charge, in fact, made for them, nor
presentment for payment in the life-
time of the party, and the claim has
been permitted to sleep a great length
of time from the voluntary act of the
party rendering the services, no inter-
est should be allowed on such claim,
except from the death of the party.
Newel o. Keith, 11 Vt. 214, unless
demand for payment had previously
been made. Ford 2. Tirrell, 9 Gray
(Mass.), 401 ; Barstow v. Robinson, 2
Allen (Mass.), 605. But if the account
is unliquidated it is held in Kentucky
that it does not bear interest, Murray
». Ware, 1 Bibb (Ky.), 325. In Vir-
ginia interest is allowed from time of
demand, and if no demand is shown,
from the time when the action was
commenced. Gammel v. Skinner, 2
Gall (Va.), 45, and in all cases interest
is allowed upon such demands from
the time when the action was com-
menced. McCollom ». Seward, 62
N. Y. 316. As previously stated inter-
est is chargeable upon cash accounts,
from date unless excluded by contract,
usage or the course of dealing. See
ante, p. ,n.; also post, p. ,n.

On notes and bills. — Notes, bills
of exchange, etc., not expressed
to be upon interest, do not bear
interest until they become due,
but interest attaches from the date of
maturity. Van Giesen ». Van Hou-
ten, 5 N. J. Law, 822; Stoudenmier
a. Williamson, 29 Ala. 558; Simpson
o. McMillion, 1 N. & M. (S. C.) 192;
Milton v. Blackshear, 8 Fla. 161. If
they are payable on demand, then in-
terest attaches from the time when
demand is made. Gleason v. Briggs,
28 Vt. 185; Maxcy ». Knight, 18 Ala.
300 ; Ordway ». Colcord, 14 Allen
(Mass.), 59; Gore v. Buck, 1 T. B.
Monr. (Ky.) 209; Bartlett ». Marshall,
2 Bibb (Ky.), 467; Dillon v. Dudley,1
A. K. Marsh. (Ky.) 66; Bishop». Snif-
fen, 1 Daly (N. Y.C. P.), 155; Cannon ».
Beggs, 1 McCord (8.C.), 370. But
in Arkansas and Obio, such notes are
held to bear interest from date without

¢

28

demand. Pullen v. Chase, 4 Ark. 210;
Darling v. Wooster, 9 Ohio St. 517,
and in Tennessee and Kentucky, it is
held that a note made without specify-
ing when it is to be paid, nor that it is
payable on demand, is due instanter
and bears interest from date. Francis
». Castleman, 4 Bibb (Ky.), 282; Col-
lier ». Gray, 1 Overt. (Tenn.) 110.

Interest coupons. — Interest cou-
pons, the payment of which has
been refused and unjustly delayed,
draw interest after the lapse of
a reasonable time. North Penn.
R. R. Co. v. Adams, 54 Penn. St. 94;
Aurora City v. West, 7 Wall. (U. 8.)
82; Mills v. Jefferson, 20 Wis. 50;
Pekin v. Reynolds, 31 Ill. 529; Conn.
Ins. Co. v. Cleveland, etc., R. R. Co., 41
Barb. (N. Y.) 9.

Bonds. — Bonds with a penalty
bear interest from the time of de-
mand, but if no demand has
been made, and there has been no
acknowledgment that the whole is
due, interest is only - chargeable
from the time when the action is
commenced; Bank of United States
v. Magill, Paine (U. §.), 661; but in all
cases the question as to whether in—
terest is chargeable upon a bond, and
from what time, depends upon the
construction of the bond and the pur-
poses for which it was given, Mc-
Cormick v. Young, 3 J. J. Marsh.
(Ky.) 180; Brainard v. Jones, 18 N.
Y. 85; Morton v. Ludlow, 5 Paige’s
Ch.(N.Y.) 519; Purdy». Philips, 11N.
Y. 406; Fake v, Eddy, 15 Wend. (N.
Y.) 76; Bank v. Bowie, 3 Strobh. (8.
C.) 489; Tazewell »v. Saunders, 13
Gratt. (Va.) 354; Waller ». Long, 6
Munf. (Va.) 71; Ryan v. Baldrick, 3
McCord (8S. C.), 498. Interest is
chargeable upon arrears of an annuity
given in lieu of dower; Houston ».,
Jamison, 4 Harr. (Del.) 330; Irby 2.
McCrae, 4 Dessaus. (S. C.) 422; or by
will; Stephenson», Axson, 1 Bailey’s
(S. C.) Ch. 274; Addams v. Heffer-
nan, 9 Watts (Penn.), 529; but this
rule does not apply when the annuity
is payable in specific articles; Philips
2 Williams, 5 Gratt. (Va.) 259; and
218

Sec. 176. Express agreement.

InTEREST.

Cases in which there has been an express agreement in words to
allow interest, are, of course, quite clear. Where, however, A and
B, who had jointly and severally granted an annuity, mutually

the question as to whether interest
shall be allowed thereon at all, and if
so from what time, is a matter that
rests in the sound discretion of the
court. Laura Jane ». Hagen, 10
Humph. (Tenn.) 332; Irby o. McCrae,
ante 7

Rent. — Where rent is payable upon
a day certain, interest is allowed from
the time when it became due. Crane
» Hardman, 4 E. D.S. (N. Y. C. P.)
448; Elkin v. Moore, 6 B. Monr. (Ky.)
462; Van Rensselaer v. Jones, 2 Barb.
(N. Y.) 648; Honore v. Murray, 3
Dana (Ky.), 31; Van Rensselaer v.
Jewett, 2 N. Y. 185.

Injuries to property. —In actions
for wrongful injuries to, or the
loss or conversion of property, inter-
est may, in the discretion of the
court, be allowed from the time when
the injury or conversion occurred.
Commercial Bank v, Jones, 18 Tex.
811; Lincoln». Claflin, 7 Wall. (U.
8.) 132.

Upon deposits. —In the absence of
an agreement or. usage to pay
interest, mere depository of money
is not chargeable with interest
thereon, unless he neglects or re-
fuses to pay it on demand. Scofield
v. Kinsler, 2 Strobh. (8. C.) 481; but
if a bank suspends payment and is
placed in the hands of a receiver, the
depositor is entitled to interest from
the date of his demand. National
Bank of Commonwealth ». Merchants’
National Bank, 94 U. 8. 487. Where
money is deposited with a person in
part payment for property to be there-
after delivered or conveyed and the
depositor refuses to perform, interest is
chargeable from the time when the
return of the deposit was demanded.
Cockcroft v.Muller, 71 N. Y. 367.

Upon verdicts. —Interest upon a
verdict where the other party ap-
peals, or otherwise delays the entry
of judgment, is held to be charge-
able in New York between the time
when the verdict was returned and
judgment entered, if the cause of

action was such as to carry interest.
People v. Gaine, 1 Johns. (N. Y.) 348.
In North Carolina interest upon ver-
dicts is only allowed in actions ew con-
tractu. Satterwhite v. Carson, 3 Ired.
(N. C.) Law, 549. 4n Iowa interest is
given from the time when’ judgment
ought to have been rendered, and not
from the date of the verdict. Shep-
hard v. Brenton, 20 Iowa, 41. See,
also, Johnson v. Atlantic, etc., R. R.
Co., 48 N. H. 410. In Louisiana in-
terest is allowed upon a verdict from
the date of judicial demand; Muri-
son v. Butler, 18 La, Ann. 296; but
where the verdict allows no interest it
is held that the judgment should give
none; Wichtrecht .», Fasnacht, 17
La, Ann. 166; and that interest is not
proper where the action is for damages
simply; Bonner ». Copley, 15 La. Ann.
504. In Pennsylvania and Indiana,
no interest is allowed on a verdict
pending an appeal or exceptions.
Blickenstaff »v. Perrin, 27 Ind. 527;
Kelsey v. Murphy, 30 Penn. St. 340;
but in Pennsylvania it is held that al-
though interest is not a necessary in-
cident of a verdict until judgment is
entered thereon, and cannot be in-
cluded for the intervening time, yet
that the courts have power when
granting a rule for a new trial, after a
verdict, to impose terms, and to enter
judgment so as to carry interest ante-
cedent to the time when it may be
finally entered. Irvin ». Hazleton,
87 Penn. St. 465.

Judgments. — A judgment bears
interest until paid or otherwise satis-
fied; Berryhill v. Wells, 5 Binn.
(Penn.) 56; Wither’s Appeal, 16
Penn. St. 151;  Wilcher » Hamil-
ton, 15 Ga. 435; unless the nature
of the judgment prohibits it, or it
is otherwise agreed; Butcher v. Nor-
wood, 1 H. & J. (Md.) 485; San-
born »v. Steele, 20 N. H. 34; Ijams v.
Rice, 17 Ala. 404; and upon levying
an execution upon land or personal
property, interest should be computed
to the time when the levy is completed ;
InTEREST.

219

agreed each to pay one-half of it, and to indemnify the other against

all actions, suits, charges, *damages, demands, sums of money
and expenses, which either of them might incur through the

Bucknam »v. Lothrop, 9 Allen (Mass.),
147; but in Maine, by statute, interest
is restricted to the time when the levy
is commenced. Brown ». Lunt, 37
Me. 423,

In Georgia, it is held that in reviv-
ing a judgment, interest is to be
counted on for the time it has been
dormant as well as for the time when
it was active; Wilcher v. Hamilton,
ante; but in Vermont it is held that
if scire facias is brought to revive a
judgment, the plaintiff obtains no in-
terest, and cannot afterward revive
his claim for interest. Hall». Hall,
8 Vt. 156. In Pennsylvania, it is held
that the statute allowing interest
upon judgments applies only to the
debt, and does not authorize the col-
lection of interest on the costs. Rogers
». Burns, 27 Penn. St. 525.

At the common law, interest is not
recoverable upon judgments or de-
crees, but where debt upon judgment
is brought, interest may be recovered
by way of damages. Trenholm ».
Bumpfield, 3 Rich. (8S. C.) 376. In
South Carolina and Texas, it is held
that judgments bear interest only
where the original claim bore it. State
v. Steen, 14 Tex. 396; Thomas v.
Wilson, 3 McCord (8. C.), 166.

Interest upon a foreign judgment is
allowed where a recovery is had upon
it in another State. Barringer ». King,
5 Gray (Mass.), 9; Mahurin 2. Bick-
ford, 6 N. H. 567; Nelson ». Felder, 7
Rich. (8. C.) Eq. 395.

What lao controls as to rate. —
When a note is made in one State
to be paid in another, the law of the
place where the payment, by the terms
of the note, is to be made, controls as
to the rate of interest, when no rate
is stipulated for in the note or con-
tract itself; Whitlock ». Castro, 22
Tex. 108; Little v. Riley, 43 N. H.
109; Hunt ». Hall, 37 Ala. 702;
Chumasero v. Gilbert, 24 Ill. 293;
Pomeroy v, Ainsworth, 22 Barb. (N.
Y.) 118; Arrington v. Gee, 5 Ired. (N.
C.) Law, 590; VonHemert ». Porter, 11
Metc. (Mass.) 210; Healy v. Gorman,
15 N. J. Law, 328; Lefflerv. Dermotte,

[*133]

18 Ind. 246; Lines ». Mack, 19 id.
223; Swett o. Dodge, 12 Miss. 667;
but if no place of payment is named,
the law of the place, where the note or
contract was made, controls; Chase v.
Dow, 47 N. H. 405; Evans v. Irvin, 1
Port. (Ala.) 390; Butters v. Olds, 11
Iowa, 1; Hoppins ». Miller, 17 N. J.
Law, 185; and, if it appears to have
been the intention of the parties that
the note should be paid in the State
where the action is brought, the law
of that State will control. Austin ».
Imus, 23 Vt. 286.

Thus, where the co-obligors of F., in
a promissory note made in New Mex-
ico, and bearing 10 per cent interest,
after a partial payment thereon, as-
sume, in the absence of F., to renew
the same for the balance still due
thereon, and accordingly, such co-
obligors, at Santa Fe, subscribe a new
note, dated at Santa Fe, and stipulat-
ing for 10 per cent interest, and F. af-
terward, in the State of Missouri, with
full knowledge of all the circumstan-
ces, also signs the new note,he thereby
ratifies the agreement made by his ¢o-
obligors, and the new note is to be re-
garded as made in New Mexico, and
is governed by the laws of that terri-
tory in respect to the rate of interest
accruing thereon, and the legal effect
of the stipulation for interest embodied
therein. Findlay v. Hall, 12 Ohio St.
610. So where a note was dated in
Montreal, Canada, payable in England,
the rate of interest in England was
held to control up to the time of judg-
ment. Scofield v. Day, 20 Johns. (N.
Y.) 102. So where goods were con-
signed by a merchant in New York to
be sold under a del credere commission,
it was held that the rate of interest in|
California controlled. Cartwright v.
Greene, 47 Barb. (N. Y.) 9. But where
a loan is effected in one State, secured
upon real estate in another, and the
note and mortgage were made, and
the money paid in the State where the
estate was and the borrower resided,
it was held that the law of the latter
State controlled as to interest, and,
though void for being usurious in the
220

Interest.

default of the other in paying his just share; it was held that one
who had paid more than his just share was not entitled at law to

interest (as interest and not as damages) upon the surplus.

State where the note was dated, it
was only subject to the deduction pro-
vided by the latter State in such cases.
Pine v. Smith, 11 Gray (Mass.), 38.
See, also, to same effect, Varick v.
Crane, 4.N. J. Eq. 128.

" Rate, in such cases must be proved. —
In an action upon a note executed
in another State, and subject to the
rate of interest existing there, the rate
in such State must be proved, if relied
on, or it will be presumed that the
rate and law as to interest is the same
as that of the lew fori. Swett v. Dodge,
ante ; Harrison v. Harrison, 20 Ala.
629; Jaffray v. Dennis, 2 Wash. (Va.)
253; Nalle v. Ventress, 19 La. Ann.
373. In Smith v. Robinson, 11 Ala.
270, it was held that, where a note is
dated at “Macon,” simply, without
designating the State, and payable “ at
either of the banks in Macon,” it can-
not, in the absence of allegation or
proof, be intended that ‘‘Macon” is
in another State, so as to devolve upon
the plaintiff the necessity of proving
the interest laws of another State.
Where, in actions upon the judgment
of another State, no proof is offered,
or any claim of interest made in the
complaint, or the judgment does not
call for interest, it will be presumed
that no interest is allowed under the
law of that State, and none will be
given. Hudson 2. Daily, 13 Ala. 722;
Cavender ». Guild, 4 Cal. 250.

How interest may be stopped. —
When interest once attaches to a
claim, it continues until the claim is
paid, or in some manner discharged,
and the fact that the debtor was en-
joined from paying it, or that he was
served with a trustee process, will not
excuse him. In order to relieve him-
self from liability in such cases, he
should pay the money into court.
Blodgett v. Gardner, 45 Me. 542; Can-
dee v. Webster, 9 Ohio St. 452; and
the fact that the note, bond or other
obligation, was mislaid or lost; Rector
». Mark, 1 Mo. 288; or that there
was a dispute as to the amount due;
Vaughan v. Howe, 20 Wis. 497; or that
the payee was out of the State when

The

the obligation matured —in the fol-
lowing case remained absent for twelve
years; In re Est. of Schaeffer, 9 S.
& R. (Penn.) 263; will not relieve him
from liability for interest. In some of
the States, the parties are permitted
to contract for any rate of interest
they please, but in several of these
States, the contract rate is held to
control only to the time of payment.
Brockway v. Clark, Wright (Ohio),
727; Talcott v. Marston, 3 Minn. 339;
Horny. Nash, 1 Iowa, 204; or until
entry of judgment; Young v. Thomp-
son, 2 Kans. 83; Burkhart ». Sapping-
ton, 1 Greene (owa),66; Wernwag 2.
Brown, 3 Blackf. (Ind.) 457; Wayman
». Cochrane, 35 Ill. 152; unless oth-
erwise provided by the statute. Raun
o. Reynolds, 11 Cal. 14.

Who may be charged with interest.—
Executors and administrators are not
chargeable with interest upon the
funds of the estate as a matter of
course, but in order to create such a
liability upon his part, special circum-
stances, rendering it just that he
should be so charged, must be shown
to exist; Hester ». Hester, 3 Ired. (N.
C.) Eq. 9; Walls’ Appeal, 31 Penn.
St. 62; Davis ». Thorn, 6 Tex. 482;
Carter v. Cutting, 5 Munf. (Va.) 223;
as, that he has either appropriated
the funds to his own use, or has per-
mitted them to lie idle when he ought
to have invested them where they
would have earned interest. Bruner's
Appeal, 57 Penn. St. 46; Pearson ».
Darrington, 82 Ala. 227; Jenkins 0.
Fickling,4 Dessaus. (8. C.) 369; Webb
v. Conn, Litt, (Sel. Cas.) 475; Coach ».
Irwin, 7 Ohio St. 22; Gwynn ». Dor-
sey, 4 G. & J. (Md.) 453; Ogilvie ».
Ogilvie, 1 Bradford (N. Y. Surro-
gate), 356; Paine v. Paulk, 39 Me. 15;
Stearns v. Brown, 1 Pick. (Mass.)
580; Williamson ». Williamson, 6
Paige’s Ch, (N. Y.) 298; Lund v, Lund,
41 N. H. 355. If he uses the funds of
the estate, or deposits it in his own
name and draws it out upon checks or
otherwise, so that he cannot pay it
over when called upon to do so, he is
properly chargeable with interest;
InrTEREs?.

221

court said, “The contract is to pay the money and damages; there
is no express contract to pay interest, nor any course of dealing from
which such a contract can be implied.” !

Sec. 177. Implied agreement. Compound interest.
Where parties have acquiesced in a course of dealing, in which in-

Jocot ». Emmett, 11 Paige’s Ch. (N.
Y.) 142; but generally, the question
as to whether he should be charged
with interest or not, is one of fact, to
be determined by the circumstances of
each case; Peale ». Hickle, 9 Gratt.
(Va.) 4837; Madden ». Madden, 27 Mo.
544; Sparhawk ». Buell, 9 Vt. 41;
Clemmens ». Caldwell, 7 B. Monr.
(Ky.) 171; Jones v. Ward, 10 Yerg.
(Tenn.) 160; Holcombe »v. Holcombe,
13 N. J. Eq. 413; Frierson v. Graham,
% Rich. (S. C.) Eq. 95; Wither’s Ap-
peal, 16 Penn. St. 151; but generally,
he will be required to show that he
has received no interest, and is not
chargeable with fault in not placing
the funds where they would bear in-
terest. Graham v. Davidson, 2 Dev.
& B. (N. C.) Eq. 155; Farmer ov. Far-
mer, 26 Ala, 671.

The question as to whether a guar-
dian shall be charged with interest
upon funds belonging to his ward, in
his hands, depends upon the question
whether he has been guilty of any
laches, in not putting them at inter-
est, or whether he has used them for
his own purposes. Generally, he will
be charged therewith, if he neglects
to place them at interest, but whether
he has been guilty of such neglect is
one of fact, in view of all the circum-
stances. Garrett. Carr, 1 Rob. (Va.)
196; Boynton v.Dyer, 18 Pick. (Mass.)
1; Pennypacker’s Appeal, 41 Penn.
St. 494; Bond v. Lockwood, 83 IIL
212; Armstrong v. Miller, 6 Ohio, 118;
Walker v. Bynum, 4 Dessau. (8. C.)
555; Clarkson »v. DePeyster, Hopk.
Ch. (N. Y.) 424.

Money received on account of the
capital of the ward’s estate are a proper
subject of charge in the annual ac-
counts of the guardian, and upon
money thus reported to the court or
upon a balance in his hands on his
accounts, no interest can be charged

against the guardian, unless he has
consented to take the same at interest,
with the approbation of the court, or
has been ordered to invest it on
interest or has made interest or
profit out of it, or employed it in
his business. Reynolds v. Walker, 29
Miss. 250; Roach o. Jelks, 40 id. 754;
Crump v. Gerock, id. 765.

He is not liable for interest on
money, on which, without his negli-
gence, no interest has been received.
Knowlton ». Bradley, 17 N. H. 458.

Even where the guardian or trustee
has not invested funds as directed by
the will under which he was appointed,
heis not necessarily chargeable with
interest. The question depends wholly
upon the circumstance whether he was
justified in not doing so. Thus where
a testator devised property in trust for
his children, and directed their guar-
dian to put at interest, on security on
teal property, such portion of the
children’s income, during their minor-
ity, as might be necessary for their
education and maintenance. The early
balances were small, and could not well
be invested in the prescribed manner,
and the guardian deposited them with
his own money, occasionally using them
in his own business, and made no in-
vestment whatever. It was decreed
that simple interest should be charged
on the accumulated balances from the
time they amounted to $1,000. Ra-
palje v. Norsworthy, 1 Sandf. (N. Y.)
Ch. 399.

The same rule prevails as to trustees.
Miller v, Beverlys, 4H. & M. (Va.) 415;
Kerr v. Laird, 27 Miss. 544; King o.
Talbot, 50 Barb. (N. Y.) 453; Stearly’s
Appeal, 88 Penn. St. 525; Halsted o.
Meeker, 18 N. J. Eq. 136; Dorsey
a. Dorsey, 4 H. & M. (Md.) 281;
Comegys 2. State, 10G. & J. (Md)
175.

1 Bell v. Free, 1 Swanst. 90.
222

INTEREST.

terest was exacted, they will be assumed to have contracted to pay
it; and in this way even compound interest may be charged as

long as the accounts remain open.”

But, although compound in-

terest may be charged, by means of half-yearly rests, where stich a
practice is assented to, it is not sufficient to show that such has been
the usage of the. plaintiff, without proving that the defendant was

acquainted with it.°

1 Ex parte Williams, 1 Rose, 399.

? Bruce v. Hunter, 8 Camp. 467;
Newell v. Jones, 4C. & P. 124; Eaton
v Bell, 5 B. & A. 34; Ferguson ».
Fyffe, 8Cl. & F. 121; Mosse ». Salt,
82 Beav. 269; 32 L. J. Ch. 756.

3 Dawes ». Pinner, 2 Camp. 486, n.;
Moore v. Voughton, 1 Stark. 487.
And see Williamson v. Williamson, L.
R., 7 Eq. 542, where acquiescence in
a banker’s charge of 500/. for a half
year’s commission on an overdrawn
account was held not to entitle the
banker to make the same charge as of
tight in subsequent half years. Also
Crosskill v. Bower, 32 Beav. 86; 32 L.
J. Ch. 540. Unless prohibited by
statute, the parties may agree to pay
interest upon interest; Stoner v.
Evans, 38 Mo. 461; Quacken-
bush v. Leonard, 9 Paige’s Ch.
(N. Y.) 334; Doe v. Vallejs, 29 Cal.
389; Banks’. McClellan, 24 Md. 62;
Wan Husdn v. Kanouse, 13 Mich. 303;
Aspinwall v. Blake, 25 Iowa, 319;
Von Hemert v. Porter, 11 Metc. (Mass.)
210; Brewster v. Wakefield, 1 Minn.
352; Hollingsworth v. Detroit, 3 Mc-
Lean (U. 8.), 472; and even where
compound interest is prohibited, yet
the parties may agree that interest
shall be payable annually, semi-annu-
ally, or at any stated periods, and after

. ut becomes due it may be agreed that
interest shall be paid thereon; Chil-
ders v. Deane, 4 Rand. (Va.) 406;
Gunn v. Head, 21 Mo. 432; Forman o.
Forman, 17 How. Pr. (N. Y.) 255;
Stokely v. Thompson, 34 Penn. St.
210; Rose v. City, 17 Conn. 243; Wil-
cox ». Howland, 23 Pick. (Mass.) 167;
Toll». Hiller, 11 Paige’s Ch. (N. Y.)

228; Compton v. Compton, 5 La, Ann..-

621; where a note is payable with in-
terest annually, etc., interest is allowed
thereon until paid, but the interest up-
on such interest does not become pay-
able annually, and cannot be computed

And even in the case of merchants’ accounts

with yearly rests; Union Bank 2. -
Williams, 3 Cold. (Tenn.) 579; Doe »,
Warren, 7 Me. 48; Stone o. Locke, 46
id. 445; Piérce v. Rowe, 1 N. H. 179;
Little v. Riley, 43 id. 109; Hollister o.
Barkley, 11 id. 501. In some of the
States it is held that where a contract
provides for the payment of. interest
upon a certain day, and it is not paid,
that it becomes a part of the prin-
cipal and bears interest from such
time. Wright 2. Eaves, 10 Rich. (8.
C.) Eq. 582; Doig ». Barkley, 3
Rich. (8. OC.) Law, 125; Anketel o,
Converse, 17 Ohio St. 11. In Mas-
sachusetts, where a trustee has ad-
vanced money to save the trust prop-
erty from forfeiture he was allowed
compound interest; Barrell v. Joy, 16
Mass. 221; and in Louisiana the
statute relating to compound interest
is held not to apply to mercantile ac-
counts, and that by general commer-
cial law, where the custom of the par-
ties and the place is, at stated periods,
to render accounts with a balance
struck, such balance, made up of
principal and interest, is regarded as
capital on which interest may be
charged from that date; Pickersgill v.
Brown, 7 La. Ann. 298; Thompson 2.
Mylne, 4 id. 206; and a similar rule
has been held in Iowa as to banker’s
monthly statements, Isett v. Oglevie,
9 Iowa, 313. In Georgia it is held not
compound interest to calculate interest
on the principal up to the time a
credit is allowed, and, if the credit
exceeds the interest due at that time,
to add principal and interest together,
deduct the credit from the sum total,
and add the interest on the balance to
the next credit, etc.; but when the in-
terest exceeds the credit, not to add
the sums, but continue the interest on
the balance, until a credit is reached
that exceeds all interest, and then add
and deduct; Wade v. Powell, 81Ga, L
IntrReEst. 223

where this system prevails, the plaintiff can recover no more
than the principal upon the dast balance, in which there is no new
account, and no new transaction, however long it may be before the
action is brought to recover the balance, and the jury cannot
give interest, still less compound interest, upon the balance.! And
the same rule applies between banker and customer. Accounts
which are made up with yearly or half-yearly rests, while the rela-
tionship continues, only bear simple interest from the time it is ter-
minated by death or otherwise.’

Sec. 178. Where payment to be made by bill.

Again, where a party undertakes to pay a debt by means of a
bill or note, which would, if given, bear interest, and fails to.
*give the note, the debt will bear interest from the time
the bill or note would have been due.* But the con-
tract to pay by bill must be clearly made out. Therefore, where the
defendant undertook to pay money according to instructions to be
received from a third party, and the instructions given were to pay
it in discharge of a bill given by that third party, and then in the
plaintiffs hands, it was held that this was not an undertaking to
pay by a bill, on which interest would run, though interest would
run on a direct guarantee for payment of a bill.*

[#134]

Sec. 179. A question of fact.

It is a question for the jury to say whether the defendant had
contracted to pay by bill or not, and slight evidence on this point
has been held sufficient. Goods were sold to the defendant in
January, and in April he wrote to the plaintiff, saying: “The
document you have sent me appears to be in the nature of a bill, and
being payable to your order, is good in the market ; just what I-
wished to avoid. The document I have wished to give you was
simply my promissory note, payable to yourself.” Nothing was
proved to have been said at the time of the contract about payment,

1 Atwood v. Taylor, 1 M. & G. 301; 3 Slack »v. Lowell, 3 Taunt. 157;
Waring v. Cunliffe, 1 Ves. Jr. 99; Hx , Marshall v, Poole, 13 East, 98; Farr
parte Bevan, 9 Ves. 223; Fergusson », »v. Ward, 3 M. & W. 25; Rhoades o,
Fyffe, 8 Cl. & F. 121. Lord Selsey, 2 Beav. 359.

2 Per Lord SeLBorne, C., Barfield x, 4 Hare v. Richards, 7 Bing. 254.
Loughborough, L. R., 8 Ch. 7; 42
L. J. Ch. 179,
294 InTEREST.

and no demand for interest had ever been made, but the plaintiff
claimed interest in his particulars of demand. It was decided that
this letter offered some evidence of an agreement to pay by a note,
upon which the jury were warranted in giving interest.’

Sec. 180. Bond with a penalty. '

The principle of these decisions, of course, is, that where a per-
son promises to give a bill, which would bear interest, the law will
imply an engagement, in case no bill is given, to pay interest as if it
had been given.” Itseems to be on the same principle that where a
bond is given with a penalty in a larger amount, to secure payment
of asum of money, interest will be allowed even without an ex-
press stipulation. “The principal money due and the interest
‘thereon may be considered as part of the penalty.’ Because the
object of the penalty is to secure him to whom it is given against
*all damage arising from default. Now, one of the most
obvious sources of damage is the loss of interest on the sum
due.* In one case,* where interest was allowed in an action on a
bond, it is not stated that there was any penalty as there was in the
instance last cited; but as the case was decided by Lord Exien-
BoRouGH, and clearly did not come within any of the rules laid down
by himself four years previously,’ it may fairly be concluded that
the bond was drawn in the ordinary form, so as to account for the
decision. Where the defendants bound themselves to pay 1,5000.
in goods, by three equal payments, at three, five and seven months,
“in failure of which we acknowledge and hereby render ourselves
liable to be sued and proceeded against for the amount;” it was
held that the instrument did not carry interest, on the ground that
it had not the effect of a bond; as there was no penalty, and the
parties were bound only in the amount which was to be actually
paid.’ And in Hogan v. Page,’ it was decided that a single bond
did not carry interest.

[#135]

a

Sec. 181. Money payable on a fixed day., Awards. Interest recoverable as
damages.
Formerly it was thought, where a sum of money was agreed to be

1 Davis v. Smyth, 8M. & W. 399. a ; Farquhar ». Morris, 7 T. R.124.

?3 Taunt. 161. , Hellier OF Franklin, 1 Stark. 291.

* Per Bayuny, J,, Cameron v. Smith, * Calton 0, Bragg, 15 East, 223.
2B. & A, 308. " Foster v. Weston, 6 Bing. 709.

®°1B. & P. 337,
INTEREST.

225

paid on a particular day, that on default interest from that day might
be recovered without any express or implied contract to that effect.

But this doctrine has now been overruled.’

1 Blaney vo. Hendricks, 2 W. Bl.761;
8 Wils. 205, 5. C.; Shipley » Ham-
mond, 5 Esp. 114; Chalie », Duke of
York, 6 Hsp. 45; De Havilland ».
Bowerbank, 1 Camp. 50; Mountford ».
Willes, 2B. & P. 337.

? Gordon ». Swan, 12 East, 419;
Higgins »v. Sargent, 2 B. & C. 348;
Page 0. Newman, 9 id. 378; Fos-
ter v. Weston, 6 Bing. 709; Cook »v.
Fowler, L. R., 7 H.L. 27; 43 L. J. Ch.
855.

In this country, the rule is firmly
adhered to, that, after default made
in the payment of a sum due upon a
particular day, interest is chargeable
from the time default was made. Reid
v. Duncan, 1 La. Ann. 265; Beardslee
v. Horton, 8 Mich. 560; National
Lanciers v. Lavering, 380 N. H. 511;
Gay v. Gardner, 54 Me. 477; Hollings-
worth 2. Hammond, 30 Ala. 668;
Milton v. Blackshéar, 8 Fla. 161;
Mills v. Jefferson, 20 Wis. 50; Jeffer-
sonville v. Patterson, 26 Ind. 15;
Spencer v. Woodbridge, 38 Vt. 492;
Binsse v. Wood, 47 Barb. (N. Y.) 624;
Collins v. Sabateer, 19 La. Ann. 299;
North Penn. R. R. Co. ». Adams, 54
Penn. St. 94.

If goods are sold upon a specified
credit, interest is chargeable after the
period of credit has expired whether
there was any promise to pay interest
or not; Moore ». Patton, 2 Port. (Ala.)
451; Porter v. Patterson, 15 Penn. St.
229; Adams v. Palmer, 30 Penn. St.
346; and in Vermont and New Jersey,
interest is chargeable upon the balance
due upon an unsettled account, after
the lapse of a reasonable time after
the account; Bates v. Starr, 2 Vt. 536;
Willis ». Brown, 3 N. J. Law, 548;
but in a majority of the States inter-
est on unliquidated account is not al-
lowable; Claud v. Smith, 1 Tex. 102;
McClintock’s Appeal, 29 Penn. St.
360; Palmer v. Stockwell, 9. Gray
(Mass.), 237; Wagoner v. Gray, 2 H.
& M. (Va.) 603; Neal v. Keel, 4 T. B.
Monr. (Ky.) 162; Rowell ». Givan, 2
Blackf. (Ind.) 312; unless there is an
express or implied agreement to pay

29

It has, however, been

it, or unless it is a mutual cash ac-
count; Easterly v. Cole, 3 N. Y. 502;
Crosby 2. Mason, 32 Conn, 482; Flake
v, Carson, 33 Ill. 518; but where it is
the custom of a creditor, known and
acquiesced in by the debtor, to charge
interest on accounts after a certain
time, or where such is the uniform
usage of the trade, proof of these facts
is admissible, and if proved to the
satisfaction of the jury, they are evi-
dence of an agreement, and interest
will be allowed. Veiths v. Hagge, 8
Jowa, 163; Knox v. Jones, 2 Dall.
(Penn.) 193; Rayburn »v. Day, 27 IIL.
46; Fisher v. Sargent, 10 Cush. (Mass.)
250; Easterly v. Cole, 1 Barb, (N. Y.)
235; Adams v. Palmer, 30 Penn. St.
346; Raymond v. Isham, 8 Vt. 263.
In Iowa, it is held that interest is
payable from the time an account is
presented for payment, unless objected
to; Davis v. Conar, 1 Greene (Lowa),
336; and in some of the States interest
is chargeable upon a balance of ac-
counts afterit has been acknowledged.
Williams »v. Finney, 16 Vt. 297; Elliott
v. Minot, 2 McCord (8.C.), 449; Hicks
v. Thomas, Dudley (Ga.), 218. Inter-
est is allowed upon advances made by
factors, etc., from date; Walters ».
McGirt, 8 Rich. (S. C.) Law, 287; or
upon money received for another and
retained without his assent; Abbott v.
Wilmot, 22 Vt. 4387; Close v. Fields,
13 Tex. 623; or where it is retained
by mistake; Shipman ». Miller, 2 Root
(Conn.), 405; and generally, in cases
where an action lies for money had
and received ; Pease v. Barber, 8 Caines
(N. Y.), 266; Goddard v. Bulow, 1
N. & M. (8S. C.) 45; Barr v. Halseman,
10 Rich. (S. C.) Eq. 53; or for money
paid; Thompson ». Stearns, 2 N. & M.
(S. C.) 493; Gibbs ». Bryant, 1 Pick.
(Mass.) 118; Chamberlain v. Smith, 1
Mo. 718; Illsey v. Janett, 2 Metc.
(Mass.) 168; Winter v. Diffenderffer, 2
Bland (Md.), 166; Knight ». Mantz,
Ga. Dec. 22. So, interest is charge-
able where goods are sold for cash,
from the date of sale. Foote v. Blan-
chard, 6 Allen (Mass.), 221; Parke o.
226 INTEREST.

always held that where, by an award, money is made payable on a
certain day, interest ought to be allowed from that day, if payment
was demanded at the place appointed.’ I cannot, on principle, ex-
plain this exception. Many apparent exceptions to the rule, that
interest is only recoverable in the cases just mentioned, may be ex-
plained by distinguishing between interest recovered as *part
of the debt, and interest recovered as damages for its deten-
tion. For instance, interest on a deposit may be recovered, if laid
as special damage in an action for breach of agreement to sell an
estate.” So it may be allowed as damages in an action on a mort-
gage deed, after the day of default ;* or upon a contract to pay money
upon a particular day ;* or wpon a covenant to indemnify a surety.”
Where a written security is given for the payment of money on a
particular day, with interest up to that day at a fixed rate, a claim
for subsequent interest would be a claim for damages at the discre-

[#136]

Foster, 26 Ga, 465. Where no time
for payment is agreed upon, and no
demand has been made, interest is al-
lowed only from the date of the writ.
Houghton ». Hagar, Brayt. (Vt.) 133;
Barstow v. Robinson, 2 Allen (Mass.),
605; Stimpson v. Green, 13 id. 326;
Ordway v. Colcord, 14 id. 59. Where
rent is payable at a certain day, in-
terest is chargeable from that time.
Clark ». Barlow, 4 Johns. (N. Y.)
183; Van Rensselaer v. Jewett, 2 N.
Y. 135; Elkin v. Moore, 6 B. Monr.
(Ky.) 462. Indeed, the rule may be
said to be that interest is always
chargeable from the time when the
principal should have been paid;
Adams ». Fort Plain Bank, 36 N. Y.
255; therefore, as a note payable on

1 Pinhorn v. Tuckington, 3 Camp.
468; Churcher 0.Stringer, 2B. & Ad.
"77; Johnson v. Durant, 4 C. & P.
827.

Interest upon an award runs from
the date of its date. Sproat v. Cutler,
Wright (Ohio), 157; Buckman ». Da-
vis, 28 Penn. St. 211; Concord R. R.
Co. ». Greely, 23 N. H. 287; Spockey
v. Glassford, 6 Dana(Ky.),9. But see
Southard v. Smyth, 20 Me. 458; Cary
». Whitney, 50 id. 387; and Clough 2.
Unity, 18 N. H. 75, holding that in-
terest on an award of damages by the

demand, becomes payable when de-
mand is made, it carries interest from
the date of demand; Bartlett v. Mar-
shall, 2 Bibb (Ky.), 467; Connor ».
Briggs, 1 McCord (8. C.), 370; or if
payable after one or any other num-
ber of day’s notice, interest is payable
from the time when the notice expires.
Cruikshanks v. Conyn, 24 Ill. 602.

Interest is chargeable upon an ac-
cepted draft, from the time it becomes
due, and default is not necessary to
establish the right to interest; Collins
». Sabatier, 19 La. Ann. 299; and a
note payable at a future time bears in-
terest from its maturity without al-
lowing for days of grace. Weems ».
Vintress, 14 La. Ann. 267.

laying out of highways is only payable
from the time when the report is ac-
cepted by the court, and in the New
Hampshire case, until after demand.

° De Bernales v. Wood, 3 Camp. 258;
Farquhar v. Farley, 7 Taunt. 592.

® Dickenson ». Harrison, 4 Price,
282; Atkinson v. Jones, 2 A. & E.
439; Price v. G@. W. Ry. Co., 16M. &
W. 244.

‘Watkins ». Morgan, 6 C. & P.
661.

5 Petre v. Duncombe, 20 L. J. Q. B.
242; 2L. M. & P. 107, 8. C.
IntTEREsT. 207

tion of the tribunal before which the demand is made, and not for
interest due as a matter of law. The former rate might, but need
not be adopted in assessing the damages.! And it is laid down as a
general rule, that although it be not due ew contractu, a party may
be entitled to damages in the form of interest where there has been
long delay under vexatious and oppressive circumstances, in the pay-
ment of what is due under the contract.’

Sec. 182. Cases in which interest is not recoverable.

Interest cannot be recovered as such in an action against the
vendor of an estate, the sale of which has gone off, for recovery of
the deposit which has been lying idle ;° but it may be recovered as
special damages for breach of the contract, if so laid.* But the
principal and auctioneer stand on a different footing, and in an
action against the latter to recover the deposit paid to him, interest
cannot be recovered, even *as damages, unless, perhaps, after
demand and refusal on the contract being rescinded.’ Not
even when the auctioneer has made interest upon the money while
in his hands; and although he was requested by one of the parties
before the completion of the contract to invest it.” Interest is not
due as such in an action for money secured on mortgage, after day
of default, without covenants to pay interest, but may be recovered

[#137]

as damages.’

1 Cook v. Fowler, L. R., 7H. L. 27-
32; 43 L. J. Ch. 855.

? Hilhouse v. Davis, 1M.& 8. 169;
Arnott v. Redfern, 3 Bing.353. Soin
equity, an executor or trustee who un-
necessarily retains money which he
ought to have invested or paid over,
will be made to pay interest. See per
Lord CHELMSFORD, C., Blogg v. John-
son, L, R., 2 Ch. 228; 36 L. J
Ch. 860. ‘By the Attorneys’ and
Solicitors’ Act, 1870, 33 and 34 Vict.,
chap. 28, § 17, taxing officers may al-
low interest on moneys of the client
improperly retained by the attorney or
solicitor, and on disbursements made
by the latter for the client.

3’ Bradshaw v. Bennett, 5 C. & P.
48; Maberley v. Robins, 5 Taunt. 625.

*De Bernales ». Wood, 3 Camp.
258; Farquhar ». Farley, 7 Taunt. 592.

5 Lee », Munn, 8 Taunt. 45.

6 Harrington,v. Hoggart, 1 B. & Ad.
577.

Nor in an action for money lent, unless there has

1 Ante, p. 136.

There are two classes of cases where
interest is given; one where the par-
ties have expressly or impliedly con-
tracted for it, and the other where it
is given by way of damages. It is
under the latter head .that interest is
given in actions of trover, trespass and
case, particularly when the two latter’
class of actions relate to injuries to
property. Thomas o. Weed, 14 Johns.
(N.Y.) 255; McIllvane o. Williams, 12
N.H. 475; Beals v. Guernsy, 8 Johns.
(N. Y.) 446; Devereux v. Burgwin, 11
Tred. (N.C.) L. 490. Soin actions
for a breach of covenant, interest, in
the discretion of the jury, is given by
way of damages. Dox v. Dey, 3 Wend.
(N. Y.) 356; and in actions for prop-
erty, the question as to whether inter-
est should be given or not, is often
discretionary with the jury; Brown».
McClelland,1 A. K. Marsh. (Ky.)43;; but
generally, especially when a promise,
228

INTEREST.

been an usage to that effect ;’ or for money had and received,’ even
though by the course of dealing between the defendant and the per-
son from whom the money was received to the plaintiffs use, the
sum would have borne interest ; for “no right passed to the plaintiff
but a right to demand the sum actually in deféndant’s hands.” And
it makes no difference that the money has been obtained by fraud.’
Nor in actions for money paid;* or on an account stated ;° or for
goods sold, even though to be paid for on a particular day ;’ though
it is otherwise where payment was to be made by a bill. Nor in an
action for work and labor ;” nor on money lying with a banker ;” nor
upon a policy of insurance." ‘Nor are annuities entitled to interest

on the arrears of their annuities.”

express or implied, exists, it is strictly
a matter of right, and where it is given

1 Calton v. Bragg, 15 Hast, 223 ; Shaw
». Picton, 4 B. & C. 7238.

For money lent, or paid to the use
of the defendant, a promise to pay in-
terest is implied, unless otherwise
agreed, or from the circumstances it is
evident that such was not the inten-
tion. Illsey ».Junett, 2 Metc.(Mass.)
168; Winder »v. Diffenderffer, 2 Bland
(Md.), 166; Knight ». Mantz, Ga. Dec.
22. Cash sales bear interest from
date. Parke v. Foster, 26 Ga. 465.
So on mutual cash accounts. Reid 2.
Van Rensselaer Glass Factory, 3 Cow.
(N. Y.) 393.

2? Walker v. Constable, 1 B. & P.
306.

Generally, where an action for

-mooney had and received lies, interest
is recoverable. Pease v. Barber, 3
Caine (N.Y.), 266; Black 0.Goodman,
1 Bailey (S.C.), 201; Goddard v. Bu-
low, 1 N. & M. (S. C.) 45.

3 Fruhling v. Schrader, 2 B.N. C.
79.

4 Crockford v. Winter, 1 Camp. 124.
The rule is otherwise in this country.
Shipman 2. Miller, 2 Root (Conn.), 405.
But where the payment is by mistake,
interest is allowable only after demand
made. Simonds v. Walter, 1 McCord
(S. C.), 97.

® Carr ». Edwards, 83 Stark. 182;
Hicks ». Mareco, 5 C. & P. 498.

Interest is chargeable as a matter of
right by a surety for money paid for

only by way of damages it is a matter
of discretion.

his principal, and generally, when paid
at his request, without proof of a de-
mand or previous request. TIllsey ».
Jewett, ante; Knight v. Mantz, Ga.
Dec. 22; Winder vo. Diffenderffer, 2
Bland (Md.), 166.

§ Nichol 0. Thompson, 1 Camp. 52 n.;
Chalie ». Duke of York, 6 Esp. 45;
Blaney ». Hendricks, 2 W. Bl. 761;
contra, overruled per Apport, CO. J.,2
B. & C. 349. See contra, Dickinson ».
Segure, 1 Dessau.(S. C.) 557.

™Gordon v. Swan, 12 East, 419;
Mountford »v. Willes, 2 B. & P. 337,
merely decides that if the jury allow
interest (which they clearly may do as
damages), the court will not disturb
their verdict. See 2 Camp. 429.

Where goods are sold to be paid for
on a particular day, interest is charge-
able as a matter of right, after that
day. Bate v. Burr, 4 Harr.(Del.) 130;
Meech »v. Smith, 7 Wend. (N. Y.) 315;

‘Foote ». Blanchard, 6 Allen (Mass.),

221.

8 See ante, p. 133.

* Trelawney ». Thomas, 1 H. Bl.
303; Milsom 0. Hayward, 9 Price, 134.

10 Edwards v. Vere, 5 B. & Ad. 282.

" Kingston ». M’Intosh, 1 Camp.
518; Bain v. Case, 3C. & P. 496.

2 Earl of Mansfield v. Ogle, 4 DeG.
& J. 41; Booth v. Coulton, 30 L. J.Ch.
378; Blogg v. Johnson, L. R., 2 Ch.
225; 36 L. J. Ch. 859.
InTEREST. 229

Sec. 183. Foreign judgments.

Interest is not recoverable as such in an action upon a foreign
judgment, where the subject of the claim is not one which would
bear *interest in this country.1 But it may be left to the
jury to say whether the plaintiff has used proper means to find
out the defendant and enforce the judgment; and if they find for
him, they may give such interest as they wish.’

(*138]

Sec. 184, Partners.

In cases of partnership, no interest is chargeable against a partner
who draws out more than his stipulated shares of the profits, even
though the deed expressly forbids such an overdrawing, unless there
is a special provision in the deed, or an established usage that in-
terest shall be charged.*. Nor of course has one partner any claim
against the other for interest on his share of capital, unless there is
an agreement to that effect. Where there is such an agreement, it
comes to an end upon a dissolution, and interest will cease to run
from that date, even though the trade may be continued with a view
to winding-up, and profits may be realized. But where the part-
nership deed stipulates that either partner may make advances be-
yond hisshare of the capital, and that such advances shall be treated
as loans to the partnership, and bear interest, they will continue to
do so, even after a dissolution, until repayment. But any practice
by which such interest was computed during the partnership with
rests would terminate at a dissolution.’

Sec. 185. Tender; payment into court.

Interest does not run after a tender.’ And where a defendant,

1 Doran v. OReilly, 3 Price, 250; At-
kinson v. Lord Braybrooke, 4 Camp.
3880.

? As damagesit would appear. Bann
v. Dalzell, 3 C. & P. 376; M’Clure v.
Dunkin, 1 East, 436.

5 Rhodes v. Rhodes, Johns. 653; 29
L. J. Ch. 418; Meymott o. Meymott,
31 Beav. 445; 32 L. J. Ch. 218.

4 Watney v. Wells, L. R., 2 Ch. 250;
36 L. J. Ch. 861; Barfield ». Lough-
borough, L. R., 8 Ch. 1; 42 L. J. Ch.
179.

5 Wood ». Scoles, L. R., 1 Ch. 369,
878; 35 L. J. Ch. 547; Barfield o.
Loughborough, L. R., 8 Ch. 1; 42 L. J.
Ch. 179.

6 Barfield ». Loughborough, ub sup.

™ Dent ». Dunn, 3 Camp. 296; unless
the plaintiff can show that the defend-
ant has used the tender, or not kept
it good; Hunter v. Bates, 24 Ind. 299;
Nantz v. Laber, 1 Duv. (Ky.) 304; Suf-
folk Bank v. Worcester Bank, 5 Pick.
(Mass.) 106; Davis 0. Parker, 14 Al-
len (Mass.), 94; Lusk 0. Smith, 21
Wis. 27; March v. Portsmouth R. R.
Co., 19 N. H. 372; Burtis v. Dodge, 1
Barb. (N. Y.) Ch. 77; Williams v.
Williams, 3 Head (Tenn.), 344; or an
unwarranted condition is annexed to
the tender; Rives ». Dudley, 3 Jones’
(N. C.) Eq. 126; or the tender is too
small; Shohe »v. Carr, 3 Munf. (Va.)
230 InrEerest.

sued upon a debt which bears interest, wishes to pay money into
court, he must pay the interest up to the time of the payment into
court. If he merely pay interest up to the commencement of the
action, the plaintiff may proceed for the difference.’

Sec. 186. Time up to which interest is computed.

Interest must, in all other cases, be calculated up to the time of
signing judgment.” Judgment is considered to be signed
*for this purpose, when the ¢éncipitur is entered in the mas-
ter’s book. The moment that entry is made, the plaintiff is entitled
to receive his debt and damages, and an unascertained amount of
costs. And the right is not affected by an alteration made in the

[#139]

amount at a subsequent period upon a motion.°

Sec. 187. Rate of interest.

Interest recovered at law is always 52. per cent.‘

10; but there must be an actual ten-
der, free from conditions, and a mere
readiness to pay is not enough to stop

1 Kidd v. Walker, 2 B. & Ad. 705.

? Robinson ».Bland, 2 Burr. 1081.

3 Fisher ». Dudding, 3 Sco. N. R.
516.

‘Sued. V. & P. 816; Upton v. Lord
Ferrers, 5 Ves. 803. In this country
the rate is fixed by the statutes of the
several States, and in some of them it
is left as a matter of contract between
the parties.

In this* country the rates of interest
are as follows: In Alabama, the
legal rate is 8 per cent, in Arkan-
sas, 10 per cent, and if more is
taken the whole debt is forfeited;
In California the legal rate is 10
‘per cent, but the parties may contract
for any rate, and the same is the
case in Colorado. In Connecticut the
legal rate is 6 per cent, but the par-
ties may contract for any rate. In
Delaware the legal rate is 6 per cent,
but the parties may contract for any
rate not exceeding 12 per cent. If
more is contracted for, the entire debt
is forfeited. In the District of Co-
lumbia the legal rate is 6 per cent,
but the parties may contract for any
rate not exceeding 10 per cent, and
if more is contracted for or taken, the

Where a con-

interest. Head ». Hoff, 2 Mill’s Const.
(8. C.) 159; Hummeel vo. Brown, 24
Penn. St. 310.

entire interest is forfeited. In Florida
the legal rate is 8 per cent, but the
parties may contract for any rate. In
Georgia the legal rate is 7 per cent,
but the parties may contract for any
rate not exceeding 12 per cent, and
if more is contracted for or taken, the
party taking it is liable to fine and
imprisonment. In Illinois the legal
rate is 6 per cent, and the parties may
contract for any rate not exceeding 10
per cent, and if more is contracted
for or taken, the entire interest is for-
feited ; the same is true of Iowa and of
Indiana, except that in the latter State
only the ezcess of interest is forfeited.
In Kansas the legal rate is 7 per cent,
but the parties may contract for any
rate not exceeding 12 per cent, and if
more is contracted for, the excess of
interest is forfeited. In Kentucky the
legal rate is 6 per cent, but the par-
ties may contract for a rate not ex-
ceeding 8 per cent. If more is con-
tracted for or taken, the entire interest
is forfeited. In Maine the legal rate
is 6 per cent, but the parties may
contract for any rate. In Maryland
the legal rate is 6 per cent, and if
more is taken the excess is forfeited.
Interest.

231

tract has been made abroad, it will bear interest at the foreign rate
till judgment signed, but only the legal interest of 52. per cent
from the time of signing judgment.

In Massachusetts the legal rate is 6
per cent, but any rate may be taken
by contract. In Michigan the legal
rate is 7 per cent, but the parties may
contract for any rate not exceeding 10
per cent, and if more is contracted
for or taken, all the interest above 7
per cent is forfeited. In Minnesota
the legal rate is 7 per cent, but the
parties may contract for any rate not
exceeding 12 per cent, and if more is
contracted for or taken the excess is
forfeited. In Mississippi and Missouri
the legal rate is 6 per cent, but the
parties may contract for a rate not ex-
ceeding 10 per cent. In Nebraskathe
legal rate is‘ 10 per cent, but the par-
ties may contract for any rate not ex-
ceeding 12 per cent, but if more is
taken the entire interest is forfeited.

In Nevada, the legal rate is 10 per cent,
but any rate may be contracted for. In
New Hampshire the legal rate is 6 per
cent; if more is taken, three times the
excess is collectible, with costs. In
New Jersey the legal rate is six per
cent, but parties may contract fora
rate not exceeding 7 per cent, and if
more is contracted for or taken the
entire interest is forfeited. In New
York the legal rate is 7 per cent, and
if more is contracted for the entire
debt or contract is forfeited. In North
Carolina the legal rate is six per cent,
but the parties may contract for any
rate not more than 8 per cent, and if
more is contracted for or taken the
entire interest is forfeited. In Ohio
the legal rate is 6 per cent, but the
parties may contract for any rate not
exceeding 8 per cent, but if more is
contracted for or taken, all in excess
of 6 per cent is forfeited. In Oregon
the legal rate is 10; parties may con-
tract for any rate not exceeding 12. If

1 Bodily v. Bellamy, 2 Burr. 1096.
As to interest on foreign bills, see
more fully post, ch. 8. Interest which
is payable by a special contract upon
a bill of exchange, may, after judg-
ment for the principal sum, be recov-
ered in a subsequent action, for a
period up to the date of the judgment

more is contracted for or taken the
whole debt is forfeited.. In Pennsyl-
vania, Tennessee, Vermont, and West
Virginia, the legal rate is 6 per cent.
If more is taken the exeess is forfeited.
In Rhode Island is 6 per cent, but
the parties may contract for any rate.
In South Carolina the legal rate is 7
per cent, and if more is contracted
for or taken the entire interest is for-
feited. In Texas the legal rate is 8
per cent; the parties may contract for
any rate not exceeding 12. If more is
taken the excess is forfeited. In Vir-
ginia the legal rate is 6 per cent, and
if more is contracted for or taken the
entire interest is forfeited. In Wis-
consin the legal rate is 7 per cent, but
the parties may contract for any rate
not exceeding 10; if more is taken the
excess is forfeited. In all the territo-
ries except Dakota and Idaho any rate
may be contracted for. In Dakota the
legal rate is 7 per cent, but the par-
ties may contract for any rate not ex-
ceeding 12; if more is contracted for
or taken the entire interest is forfeited.
In Idaho the legal rate is 10 per cent,
and the parties may contract fora rate
not exceeding 24 per cent, and if more
is contracted for or taken the party
taking it is liable to fine and imprison-
ment. In Arizona, Montana, Wash-
ington and Utah, the legal rate is 10
per cent; in New Mexico 10 per cent;
in Wyoming 12 per cent, and in all of
them the parties may contract for any
rate; but in all those States and terri-
tories where the parties may fix the
rate by contract, the rate must be ex-
pressed in the contract itself, or the
legal rate controls, and the same is
true if no rate is agreed upon. Of the
expediency or wisdom of these statutes
it is not our province to speak, but

in the first action; but not for a sub-
sequent period, because the right to
interest under the agreement ceases at
the date of the judgment. Florence
v. Drayson, 1 C.B.(N. 8.) 584;8. C.
nom. Florence v. Jennings, 26 L. J.
C. P. 274.
932 Interest.

Sec. 188. Interest by statute.

As to the cages in which interest is given by statute 3 & 4
W. IV, c. 42, § 28, enacts, “that upon all debts or sums certain,
payable at a certain time or otherwise, the jury on the trial of any
issue, or on any inquisition of damages, may, if they shall think fit,
allow interest to the creditor, at a rate not exceeding the current
rate of interest, from the time when such debts or sums certain
were payable, if such debts or sums be payable by virtue of some
written instrument at a certain time, or if payable otherwise, then
from the time when demand of payment shall have been made in
writing, so as such demand shall give notice to the debtor that in-
terest will be claimed from the date of such demand, until the term
of payment. Provided that interest shall be payable in all cases in
which it is now payable by law.”

“8 29. The jury on the trial of any issue, or on any inquisition
of damages, may, if they shall think fit, give damages in the nature
of interest, over and above the value of the goods at the time of the
conversion or seizure, in all actions of trover or trespass de bonis
asportatis, and over and above all money recoverable in all actions
on policies of insurance made after the passing of this act.”

Sec. 189. Meaning of word “certain.”

Under section 28, a sum will be considered certain, when it can
*be made so by calculation.! Therefore, where a party
had paid a number of excessive charges to a railway com-
pany under protest, and sued for the balance, it was held that he
might recover interest upon it, having made a proper written de-

[#140]

mand.’

they were evidently passed with an
idea that they would have a tendency
to cause surplus capital to seek the
States where they exist; but, whether
any business that can afford to pay
more than 6 per cent for capital, can
flourish for any considerable period, is
a question that is not hard of solution.
The experience of money lenders has
been such that they are not inclined to
trust their money in the hands of peo-
ple who are willing to pay large rates
of interest. But in the states, where

1 Harper v. Williams, 4 Q. B. 219,
224,

On the same principle, and with reference to time, it has

the parties are left at liberty to cou-
tract for any rate of interest, it is said
that no ill results have been experi-
enced, and that in some instances the
rate usually paid is less than the
legal rate. In any of the States, it
is competent for the parties to con-
tract for arate of interest Jess than
the legal rate, and their contract, in
this respect, is obligatory, but whether
such rate is binding after the debt
becomes due, is an open question.

2 Hdwards v.

Ry. Co. 11 ©.
B. 588; 21 L. J. ;

Ga. W.
C. P. 72.
INTEREST. 233

been held, that a debt is payable at a certain time, even though the
actual day is not ascertained on the face of the instrument, provided
the writing contains in itself the basis of calculation which was to
make it certain. Accordingly where the plaintiff supplied furniture
to the defendant on the written terms, “ one-third in cash, and bills
at six and twelve months for the balance,” it was held that he was
entitled to interest on the one-third from the date of delivery.!. But
it is otherwise where the certainty can only be arrived at after the
settlement of matters that are or may be in dispute. A contract
between a railway company and a contractor provided that pay-
ments should be made monthly, as the works proceeded, on the cer-
tificate of the company’s engineer. Nothing was said as to interest.
The contractor made a demand in writing for a sum, as being the
balance due to him, and claimed interest. His accounts were dis-
puted, and ultimately he was found to be entitled to less than half
of what he had claimed. It was held that the claim did not come
within the statute either as to amount or as to time. Not as to
amount, because it could not be found ‘in the contract itself what
sum was payable under it. Not as to time, because no time could
be alleged at which the amount due to the contractor was certain,
before the certificate was given.” A similar decision was given in
the following case: A party agreed to pay money by a letter in
which the following words occurred: “I shall pay all the princi-
pal, interest, and costs through a friend of mine in L., to whom a
transfer of all the securities will have to be made; the cash will be
ready, if the securities will, on the 16th inst.” : the securities were
in the plaintiff's hands, and were not ready for transfer till some
time after the 16th, and the transfer *never was effected, it 141]
was held that this did not amount to a promise to pay on a
day certain. It was also decided in the same case that an accept-
ance of the above offer, and a subsequent letter concluding, “ Will
you be good enough to inform us what you now propose to do; you
are aware that. we hold your undertaking,” did not amount to a
demand in writing under the above section.’ A demand, however,
will be a sufficient compliance with the statute, although it does not

1 Duncombe v. Brighton Club, L. OCo., L. R., 18 Eq. 154; 43 L. J. Ch.

R., 10 Q. B. 371; 44 L. J. Q. B. 216. 556.
* Hill ». South Staffordshire Ry. 3 Harper v. Williams, ubi sup.

30
234 Inrerest.

follow its very words, if it gives the defendant substantial notice
that if he keeps the plaintiff’s money longer in his hands, he will be
held liable for interest upon it, from the time he is served with the
demand till the time of payment of the principal. Accordingly,
where the notice stated that the plaintiff would expect interest from
a period considerably anterior to the date of his letter, it was held
sufficient.?

Sec. 190. Notice of action.

Where the defendant is entitled to notice of action under any
statute, it seems that the notice must contain a demand of interest.
But this defense can only be set up where the want of notice has
been pleaded specially. And in such a case, if the action and all
matters in difference have been referred to an arbitrator, he may
give interest, whether it was demanded in the notice of action or
not.” .

Sec. 191. Written instrument by virtue of which a debt is payable.

Where the statute speaks of money payable by virtue of a
written instrument, it means a written instrument which sets forth
an obligation to pay at a certain time. Therefore, a mere letter of
application for a loan until a day named is not sufficient to satisfy
the statute. Because the obligation to pay, if it ever arose at all,
would arise not from the letter but from it coupled with what was
done upon it.*

Sec. 192. Discretion of the jury.

Whenever interest is solely given by this statute, the jury are left
entirely to their own discretion whether they will grant it or not,
4149] and where they think fit to withhold it, the court will *not

interfere. Therefore, where the agreement was to pay a
debt by half-yearly installments, on specified days, “ with interest for
the same sums at the rate of 52. per cent per annum, to be reck-

+ 1Mowatt ». Londesborough, 8 E. & see Stocken’s case, L. R., 3 Ch. 412;
B. 307; affirmed ‘in Ex. Ch. 4 E. & 387 L. J. Ch. 5, 230.

B. 1; 23 L. J. Q. B. 38. See as to ? Edwards v. G. W. Ry. Co., 11 C.
demand of interest on notice of a call B. 588; 21 L. J. C. P. 72.

toa contributory, Ex parte Lintott, L. 3 Taylor v. Holt, 3 H. & C. 452; 34
R., 4 Eq. 184; Barrow’s case, L. R., 3 L. J. Ex. 1; Merchant ee Co.
Ch. 784. As to liability for interest 2, Armitage, 1 ‘ - 9Q. B. 99, 114;
on calls after forfeiture of the shares, 43 L. J. Q. B
InTEREST. 935

oned from first October then next, until the day of payment there-
of, such interest to be paid by equal half-yearly payments,” it was
decided that interest upon the arrears of interest could not be
allowed at common law; that it might be given under the statute 3
& 4 W. IV., ch. 42, § 28, but that as the jury had refused to allow
it, the propriety of their decision could not be questioned.! Nor
can their decision be questioned, though they give interest at 52. per
cent, when this is higher than the current rate of interest at the’
time.”

Sec. 193. Jury only can give interest.

Interest can only be given under this statute by the jury. Ac-
cordingly, where a plaintiff, after making a demand for the express
purpose of obtaining interest, consented to a compromise which
deprived him of his right to go beforea jury, without stipulating
for interest, he was held to have lost his right to it.’

Sec. 194. Interest upon judgments.

As to interest upon judgments, it was enacted by 1 & 2 Vict., ch.
110, § 17, that every judgment debt shall carry interest at the rate
of 42. per cent from the time of entering up the judgment, or from
the time of the commencement of the act. The judgments named
in this section are judgments of the superior courts of Westminster ;
and the act equally applies to all such judgments, whether against
the defendant for the subject-matter of the suit, or against the
plaintiff for costs.°

Sec. 196. Time from which it runs.

The time of entering up judgment for the purpose of this act is

from the entry of the incipitur in the master’s book, and not from
the final completion of the judgment after the taxation of costs.”

Where a writ of error was brought upon a judgment, it was
*formerly discretionary with the court above to grant inter- _.

[#143]

est on the judgment of the court below. But 3 & 4 W.

1 Attwood v. Taylor, 1M. & G. 4So by order 42, R. 14.
279. See per Harr, V.C., L. R., 6 Pitcher v. Roberts, 2 Dowl. (N.

18 Eq. 170. 8.) 394; Newton v. Conyngham, 17
2 Mowatt v. Lord Londesborough, 4 L. J. CP. 288. :
E. & B. 12. 6 Fisher v. Dudding, 3 Sco. (N. R.)

8 Berrington v. Phillips,1M.& W. 516; Newton ». Grand Junc. Ry.
48. Co., 16M. & W. 139.
236 INTEREST.

IV., ch. 42, § 30, enacted that, if any person should sue out any
writ of error upon any judgment whatsoever, given in any court, in
any action personal, and the court of error should give judgment for
the defendant thereon, then interest should be allowed by the court
of error for such time as execution had been delayed by such writ
of error for the delaying thereof. This statute was imperative, and
interest was calculated at 4/. per cent;' and might be awarded by
the house of lords.? Proceedings in error are now abolished.’

Sec. 196. Equitable claims.

In case of equitable claims, not expressly barred by the law of
limitation, courts of equity will, in general, limit the arrears of in-
terest awarded to the period fixed by statute, unless there are
special circumstances which entitle the claimant to special con-
sideration.*

Sec. 197. Interest on moneys refunded where decree reversed.

‘Where a person has been turned out of possession of property,
or compelled to pay a sum of money, by a decree of court, the re-
versal of that decree entitles him to be replaced in the same position
as if the proper decree had been passed at first. Therefore, he has
a right, not only to have all‘money paid by him under the erroneous
’ decree refunded, but also to have interest on such refund. But it
is not the usage to allow interest on costs paid, and afterward re-
funded, unless there has been an order of the court, or an agree-
ment of the parties to that effect.*

1 Levy v. Langridge, 4 M. & W. 5 Rajah Lelanund Singh ». Mahara-

337, : jah Luckmissur Singh, 138 Mo. Ind.
2 Garland v. Carlisle, 5 Cl. & F. App. 490; Rodger v. Comptoir D’Es-
855. ‘ Compte de Paris, L. R., 3 P. C. 465;
3 Order 58, R. 1. Forester v. Secretary of State for

4 Thomson, Eastwood, 2 App. Ca. India, L. R., 4 Ind. App. 137.
215.
Sec. 198.
199,
200.

201.
202.
203.
204.
205.
206.
207.
208.
209.
210.
211.

212.
213.
214,
215.
216,
217,
218.

219.
220.
221,

222.
223.
224.
225.
226.
227.
228.
229.
230.

Contracts oF SALE, 237

*CHAPTER X. (*144]

CONTRACTS OF SALE.

Damages where goods have been received,

Or property has passed to defendant.

Damages for refusing to accept. Time from which difference of
value to be calculated. Damages calculated from date of
breach of contract. Repudiation equivalent to breach.

Duty of buyer to carry goods away.

Damages for refusal to accept stock or shares.

Contracts for shares not in existence; how to be construed.

Absolute undertaking to pay.

Damages for refusal to deliver goods.

When distinct times of delivery.

Intermediate case.

Damages when no time is fixed for performance.

Postponement of time for performance.

Delivery by installments.

Where goods are not procurable in market. Loss of profits an
element of value.

Additional expenses caused by breach of contract.

Loss of profits on resale.

Article intended for use.

Actions for not replacing stock.

Profits not allowed for.

Bonus on stock.

Damages for non-delivery of goods where payment has been
made, American decisions.

English decisions. Startup 0. Cortazzi; Dutch ». Warren.

Further discussion of the point.

Damages when goods paid for by bill, which is aishonored,
Order for specific delivery of goods.

Actions on warranty. Right to return goods.

Damages when article has been returned.

When article has not been returned.

Question as to effect of rule where goods have not been paid for.

Expense of ‘keep.

Damages where article bought for a specific purpose.

Expense incurred in advancing value of the article.

Costs of former action. ,

Misrepresentation.
238 Contracts oF SALE.

Sec. 198. Damages where goods have been received.

Under the general head of contracts of sale may be considered
several forms of action, the damages in which are governed by
analogous principles. They are not only the most ordinary, but the
rules connected with them are the simplest, and therefore the most
proper to commence with.

Contracts of sale may give rise to actions by the vendor against
the vendee, or vice versa, the vendor may sue the vendee for default
in payment, or for a refusal to accept; the vendee may sue the
vendor for a refusal to deliver, or for a breach of warranty as to the
quality of the article. Differences will also arise according to the
subject-matter of the contract, which may relate to chattels, such as
goods, shares or stock, or to land. Each of these will require a
separate examination.

I. Sales of goods.

1. Where the vendee has actually received the goods, of course
the action can only befor the price. This case presents no difficulty ;
the price is generally ascertained by the contract, or is settled by the
jury at the fair value of the article. Claims for interest will be
regulated by the principles laid down in the preceding chapter.’
[#145] On the other hand, *the defendant may allege that the article

is inferior to that for which he had bargained, and may
claim a reduction of damages on that account. The principles upon
this point have also been discussed at sufficient length in a previous
part of this work.’

Sec. 199. Or property has passed to defendant.

Even where no delivery to the defendant has been, or can be
made, as, for instance, where the sale was of a specific quantity of
butter, which was lost by shipwreck, the plaintiff may recover the
full price in an action for goods bargained and sold, if the property
has passed to the defendant.” Where goods are sold, to be paid for
by a bill, which is not given, assumpsit for goods sold and delivered
cannot be maintained before the time at which the bill, if given,
would have fallen due. But the plaintiff may sue at once for the

1 Ante, p. 214, et sea. * Alexander v. Gardner, 1 Bingh. N.
2 Ante, p. 159. C.671,
Rervusat ro Accrpr Goops. 239

breach of the special agreement ;' and will recover the whole amount
of the bill.” It has been suggested in America, that there ought to
be a rebate of interest in proportion to the stipulated period of
credit.”

Sec. 200, Damages for refusing to accept. Time from which difference of value
to be calculated. Damages calculated from date of breach of
contract. Repudiation equivalent to breach.

The defendant may refuse to accept the goods. In this case, if
the property has passed to him, the vendor may at his option con-
sider the contract of sale as still unbroken, and recover their entire
price in an action for goods bargained and sold, even though they
have not been delivered.*. He may on the other hand, after the
time for acceptance has expired, or any other essential condition has
been broken, sue for breach of the contract, even after he has resold
the goods.* In the latter case, the measure of damages is the dif-
ference between the contract price and the market price at the time
when the contract ought to have been completed,’ for the seller may
take his goods into the market and obtain the current price for them."

* Mussen ». Price, 4 Hast, 147.

? Hutchinson 2. Reid, 3 Camp. 329.

3 Hanna v. Mills, 21 Wend. 90.

4 Graham o. Jackson, 14 East, 498.

In Thorndike v. Locke, 98 Mass.
340, the defendant, being the owner of
several shares of the stock of a cor-
poration, sold the same to the plaintiff
under an agreement that he would, at
a specified time, take back all such
shares as the plaintiff might then own,
at a certain stipulated price. The
plaintiff at the stipulated time tendered
the shares to the defendant, and he re-
fused to receive or pay for them, as he
had agreed to do. The court: held
that,the plaintiff still having the shares
in his possession, might recover the
contract price. A similar doctrine
was held in Thompson v. Alger, 12
Metc. (Mass,) 428; Ballentine v. Robin-
son, 46 Penn. St.177. Thus, where
the plaintiff, in pursuance of an agree-
ment with the defendant, furnished
the materials and constructed a car-
riage for the defendant, in accordance
with his order and direction, for which
a stipulated price was to be paid, and
the defendant refused to receive it
when completed, and the plaintiff ten-

dered him the carriage, it was held
that he was entitled to recover the
price, with interest from the time when
the money should have been paid.
Shamhan ». Van Nest, 25 Ohio St.
490.

5 Maclean v. Dunn, 4 Bing. 722. It
was decided by Lord ELLENBOROUGE
that an action for goods bargained and
sold would be maintainable, even after
a resale by the plaintiff; Mertens v.
Adcock, 4 Esp. 251; but this case, after
being several times doubted, has been
overruled. Lamond 2. Davall, 9 Q. B.
1030,

8 Boorman v. Nash, 9B. & C. 145.

1 Per Cur., Barrow v. Arnaud, 8 Q.
B. 610, in Ex. Ch.

Northrup ». Cook, 38 Mo. 208;
Whitmore v. Coates, 14 id. 9; Rand ».
White Mountain R. R. Co., 40 N. H.
79: McNaughton v. Cassella, 4 Mc-
Lean (U. 8.), 580; Gunson v. Madigan,
13 Wis. 67; McCracker v. Webb, 36
Iowa, 587; Kricks o. Jones, 44 Md.
396; Converse v. Prettyman, 2 Minn.
229: Davis ». Shield, 24 Wend. (N.

-Y.) 832; Parsons ». Sutton, 66 N. Y.

92; Burnham »v. Roberts, 70 Ill. 19;
and this rule is not varied if the price
240

[*146]

Rervsat to Acorrr Goops.

For instance, a contract was *made early in January, to sup-
ply a quantity of corn “to be delivered at Birmingham as

soon as vessels could be obtained,” and on the 26th January defend-
ant gave notice to the plaintiff that he would not accept it if deliv-

is paid in advance; Hill . Smith, 32
Vt. 483; Harter » Hanna, 2 Ark.
' 397; Mann v. United States, 3 Ct.
of Cl. (U. 8.) 404; Andrews v. Hoover,
8 Watts (Penn.), 239; Pollen». LeRoy,
380 N. Y. 549; Dey v. Dox, 9 Wend.
(N. Y.) 129; Marshall o. Piles, 3
Bush (Ky.), 249; and if the article
has no special market value, and the
vendor cannot sell it, it seems that he
may use it, and recover the difference
between its value for the purpose for
which he used it, and the contract
price. Thus, the plaintiff purchased
of the defendant a quantity of straw,
then in the defendant’s barn, which
the parties, upon examination, esti-
mated at two and a half tons, at four
dollars per ton, and it was agreed that
the plaintiff might draw away the
straw at his pleasure. Within a few
days the plaintiff drew away a part of
the straw, supposed to be about one
ton. The plaintiff, upon being sub-
sequently requested, having refused
to draw away the residue, the defend-
ant threw it into his barn-yard, the
next spring, to his cattle, it then hav-
ing become damaged. The court
held, that this was a sufficient sale
and delivery of the straw, to entitle
the defendant to recover the price in
an action upon book account, deduct-
ing what was its value to him for the
use to which it was put. Chamber-
lain », Farr, 23 Vt. 265.

But, where there is a market for the
article, the vendor should sell it for a
fair price, and then he may recover
the difference between the contract
price and the price at which he sold
it. Itis of course essential that the
sale should be bona jide and that the
vendor should use reasonable efforts
to realize the best price therefor, and
if he has been guilty of fraud or col-
lusion in the sale, the rule would not
apply. Whitmore v. Coates, 14 Mo.
9; Dana v. Fielder, 12 N. Y. 41;
Haskell 1. McHenry, 4 Cal. 411.

Where the goods are sold by the
vendor at the best price that could be

obtained, he may recover the differ-
ence between the price agreed to be paid
and that received therefor, and, if he
sells for more than the contract price,
or at the contract price, or even if the
market price is not shown, he may at
least recover nominal damages; Bil-
lings v. Vanderbeck, 23 Barb. (N.
Y.) 546; upon the first proposition;
see Pollen v. LeRoy, 30 N. Y. 549;
Saladin ». Mitchell, 45 Ill. 79; Girard
o. Taggart, 5 8. & R. (Penn.) 19;
Cook v. Brandies, 3 Metc. (Ky.) 555;
Marshall v. Piles, 3 Bush (Ky.), 249;
and this rule applies as well to articles
to be manufactured, as to things in
esse. Rider v. Kelley, 32 Vt. 268;
Ballentine v. Robinson, 46 Penn. St.
177. The vendor may sell at the
best price that can be obtained within
a reasonable time after the time for
delivery has passed, and recover the
difference between the price received,
deducting necessary expenses of sale,
and the price agreed to be paid.
Dustan v. McAndrew, 10 Bosw. (N.
Y.) 180. In Appleton v. Hogan, 9
B. Monr. (Ky.) 69, this rule was
adopted as to a sale of a lot of corn
which was to be delivered at Louis-
ville in sacks, at a certain price. The
vendce refused to accept the corn, and
the vendor sold it within a reasonable
time and recovered the difference be-
tween the price received and that
named in the contract. But this rule
does not apply, unless the property is
sold within a reasonable time after the
time for delivery has passed. If the
vendor has delayed in selling for an
unreasonable time, as in the case cited
below, for fifteen months, he is re-
stricted to the difference between the
market price at the time and place of
delivery, and the price agreed to be
paid. Pickering », Bardwell, 21 Wis.
562. If a part of the property has
been delivered, and the vendee refuses
to accept the balance, the measure of
damages is the contract price for the
part delivered, and the difference
between the market price and the
Rervusat to Acozrr Goons.

241

ered; it was at that time on its way to B., and on its arrival there
the defendant was required to accept it, and refused, upon which
the action was brought; the question was, whether the damages
should be calculated according to the market price on the 26th Jan-

price agreed to be paid for the
balance; Danforth 0. Walker, 37 Vt.
239; and, while the vendee may, if
the property delivered is of a differ-
ent quality from that contracted for,
refuse to receive it, or if received
without knowledge of its inferior
quality, return it upon discovery of
the fact, yet if he returns it, he must
at least pay for that, less the differ-
ence between the value as it was, and
what its value would have been if it
had been as contracted for, but this
does not warrant him in putting an
end to the contract altogether, and if
he refuses to receive the balance, the
vendor, offering to deliver property of
the kind and quality called for by the
contract, he is liable for the differ-
ence between the market and contract
price, and for the purposes of ascer-
taining the market price, the vendor
may show the value of such goods
just before and just after the time
fixed for delivery, and at other places
not distant from the place of delivery.
The true rule is the difference between
the contract price and the market
price of the goods, on the day and at
the place of delivery; evidence of the
market price at other places is not ad-
missible where a market price at the
place of delivery is clearly proven; Greg-
ory v. McDowell, 8 Wend. (N. Y.)
435; nor is any reference to be had to
the price at which the vendee may
have promised the goods to others in
the meantim?. Davis v, Shields, 24
Wend. (N Y.) 322.

In ascertaining the market value,
the evidence must be confined to ac-
tual market value, and the defendant
cannot inquire into the probable effect
of throwing upon the market the
quantity which he was to deliver.
The inquiry is, at what price the vendee
could have purchased the commodity in
market, not what he could have sold it
for if it had been delivered.

In such a case, defendant cannot
be permitted to give evidence as to its
market value in quantities equal to

31

that named in the contract, unless it
is first shown, as matter of fact, that
there was a market price for it in such
quantities. Nor can he go into specu-
lative inquiry as to the usual differ-
ence between prices on large and
small lots, unless it appear that it was,
or could be, purchased at the time
and place for delivery, in the quantity
specified in the contract. Dana 0.
Fiedler, 12 N. Y. 40.

This doctrine was held and is well
illustrated in a case recently decided
by the court of appeals in New York,
Cohen v. Phillips, 69 N. Y. 348. In
that case, in September, 1872, the
plaintiff at New York city sold the
defendants 10,000 boxes of glass at
seven and one-half per cent discount
from the price of July, 1872, to be’
paid for in gold at New York upon
delivery of invoice and bill of lading,
by bills of exchange on Antwerp.
The glass was to be of approved,
standard quality, and was to, be
shipped on sailing vessels at Antwerp
at the risk of the defendants as soon
as shipped, and was to be delivered
during the months of October, Novem-
ber and December, 1872, and January,
1873. Under this contract, 4,924 boxes
of glass were delivered and paid for, °
but the defendants refused to receive
the balance. The defendants claimed
upon the trial, and gave evidence
tending to show the fact, that the
glass received by them was not of ap-
proved, standard quality, and that
some months after the glass was de-
livered they complained of its quality,
but they never gave the plaintiff no-
tice to re-take it, or offered to return
it. Eart, J., in delivering the opin-
ion of the court, said: ‘‘ They received
it under the contract, and it is: not
important in this action to determine
—as no counter-claim is set up—
whether or not a right of action for
damages on account of the inferior
quality of the glass survived the ac-
ceptance. The fact that the glass
delivered and received upon the con-
242

Rervsat to Accept Goons.

uary, when the notice was given, or the price on the last day when
the eontract could have been completed, viz., when the wheat was

tendered for acceptance.

The latter was held to be the proper rule.

Lord Asmerr, OC. B., said, “ The proper period at which to calcu-

tract was inferior, did not give them
the right to repudiate the contract
altogether. They could demand bet-
ter glass, and when the plaintiff of-
fered to deliver the balance, if it was
inferior, they could refuse to accept
it. But if plaintiff was ready and
willing to deliver for the balance such
glass as the contract called for, they
were bound to receive it. Here the
plaintiff requested them to take the
balance of the glass, and they refused
to take any more, and thus repudiated
and put an end to the contract. There
was no proof that the plaintiff insisted
upon delivering inferior glass, or that
he was not ready and willing to
deliver glass of the proper quality.
They did not take the position that
they were willing to receive glass of
approved standard quality, but re-
fused to take any more glass under
the contract. There was, therefore,
such a breach of contract as entitled
the plaintiff to recover such legal
damages as he sustained by the
breach, * *

The contract was made in New

York, and it was doubtless contem-
plated by the parties that the glass
-would be carried to New York. But
the plaintiff was not bound to deliver
it there. His delivery was upon ship-
board at Antwerp, and after the glass
was shipped the defendants could
transport it to any part of the world.
It was then at their risk, and they
were liable to pay for it, although it
should be lost. After plaintiff had
shipped the glass, all he was bound
further to do, to entitle him to pay-
ment, was to present to the defend-
ants at New York the invoices and
bills of lading of the glass.

Here the balance of the glass was
not actually delivered. The defend-
ants notified plaintiff not to ship, and
absolutely refused to take any more,
and hence the glass remained in Bel-
gium. The general measure of dam-
ages in such a case is the difference
between the contract price and the

market price at the time and place of
delivery. This measure is adopted as
one that will generally give complete
indemnity to the seller. He can dis-
pose of the commodity contracted to
be sold at the market price, and his
damage will be the difference between
the price thus obtaned and the price
he would have received if the contract
had been performed. Evidence as to
the price need not be confined to the
precise time when the contract was to
have been performed. It may some-
times be impracticable to show the
price at the precise time, and hence
evidence of the price for a brief period
before and after the time may be
given, not for the purpose of estab-
lishing a market price at any other
time, but for the purpose of showing
as well as practicable the market
price on the day the contract was to
have been performed. So it may not
always be practicable to show the
price at the precise place of delivery.
There may have been no sales of the
commodity there, and hence evidence
of the price at places not distant, or in
other controlling markets may be given,
not for the purpose of establishing a mar-
ket price at any other place, but for the
purpose of showing the market price at
the place of delivery. Dana v. Fiedler,
12 N. Y. 40; Dustan o. McAndrew,
44id. 72; Durst ». Burton, 47 id. 167.
Here there was no difficulty. There
was a market price at the place of
delivery. The defendants proved
that the market price there was thirty-
seven and one-half per cent off from
the tariff rate, and the plaintiff proved
that the market price in New York
was fifty per cent off. The court
charged the jury that the plaintiff
was entitled to recover the difference
between the contract’ price and the
market price in the city of New York,
and this charge gave the plaintiff sev-
eral thousand dollars more than he
could upon the evidence have recov-
ered if the court had charged that the
market price at Antwerp should be
_Rervsat ro Acozrt Goons.

243

late the damages was when the defendant ought to have received the

goods.

The original contract was in no way modified by the notice,

and the plaintiffs were not bound then to sell in order to reduce the

damages.”

taken instead of that at New York.
In this charge, which was properly
excepted to, the court erred, and for
this error the judgment must be re-
versed and new trial granted, costs to
abide event.”

If the contract of sale provides
that the vendee shall pay for the
property in specific articles, and the
property is delivered, and the vendee
refuses to deliver such articles, or if
there is an offer to deliver by the ven-
dor, and the vendee refuses to receive
the property, the measure of recovery,
in ap action by the vendor, is not the
value of the property sold, but the
value of the property agreed to be given
in payment therefor. »Thus, in Fen-
ton v. Parkins, 3 Mo. 23, the plaintiff
sold the defendant a horse, for which
he was to give the plaintiff a note
for a certain sum against C. The
plaintiff delivered the horse, but the
defendant refused to deliver the note,
and, in an action upon the contract,
it was held that the measure of recov-
ery was not the value of the horse,
but what the note purports to be worth.
See, also, Lucas v. Horton, 1 Ind. 264,
where the defendant, having con-
tracted to deliver a certain quantity of
flour for a certain quantity of wheat,
it was held that, upon failure to de-
liver, the value of the flour, and not
the value of the wheat, was the
measure.

The rule in such cases is that, where
a contract is entered into for the de-
livery of a specific article, the value
of that article, at the time fixed for
the delivery, is the amount of the
damages to be recovered on « breach
of the contract; and if no time is
fixed for the delivery, and no demand
proved, the commencement of the suit
must be considered the demand, and
the value of the article at the time of
commencing the action, with interest,
is the proper rule of estimation;
Davis ». Richardson, 1 Bay (S. C.),
105; S. P., Atkinson v. Scott, id.
307; Wigg v. Garden, id. 357; but

And Parxz, B., said, ‘The notice amounts to nothing

when the agreement is to pay somany
dollars, whether in a commodity or in
money, the amount of money agreed
to be paid is the only measure of dam-
ages for a breach of the covenant.
Murray v. Gale, 52 Barb. (N. Y.) 427.

In a suit brought for not delivering
cotton, in breach of an agreement by
which a specified lot of cotton, at an
agreed price, was to be exchanged for
the note of a third person, the differ-
ence between the amount of that note
and the value of the cotton at the
agreed price, to be secured by the
note of the purchaser of the cotton,
the rule of damages (no other dam-
ages having been proved) is the value

. of the note in money at the time of

the contract, at the stipulated price
for the cotton to be received in ex-
change, with interest upon that value
from the day the cotton was de-
manded; the note, which had been
deposited in the registry of the court,
to be at the disposal of the defendant,
Bicknall 0/ Waterman, 5 R. I. 43.
Under the rule that, when the arti-
cle sold is not received by the vendee,
he is liable for the difference between.
the contract price and the market price,
it follows that when the article is of no
value, the vendor may recover the
whole sum agreed to be paid; as,
where the vendor contracts to make
and deliver to the vendee, who owns
the patent, a certain number of pa-
tented articles which he (the vendor)
has no right to sell. This was held in
Allen v. Jarvis, 20 Conn. 38, where the
plaintiff entered into a contract to
manufacture fifty patent surgical ad-
justers for the defendant, which the
defendant refused to accept. A verdict -
was given for the plaintiff for the
whole sum agreed to be paid, and it
was sustained upon appeal, so far as it
related to the fifty adjusters contracted
for, Storrs, J., saying: “The rule of
damages, in an action for the non-ac-
ceptance of property sold or contracted
for, is the amount of the actual injury
sustained by the plaintiff, in conse-
244 Rerusat to Accerr Goons.

until the time when the buyer ought to receive the goods, unless
the seller acts on it in the meantime, and rescinds the contract.”
In the same case Parks, B., stated his opinion that no action would
have lain for breach of contract upon the mere receipt of the notice,
but that the plaintiff was bound to wait until the time arrived for
the delivery of the wheat, to see whether the defendant would then
receive it. This position, however, has been denied by the queen’s
bench, and they have laid it down, that where a refusal to perform
a contract can be proved by evidence, which shows that the party
has utterly renounced the contract, or has put it out of his own
power to perform it, the injured party may at his option sue at once,
or wait till the time when the act was to be done.” A similar de-
cision was given in a previous case, the facts of which were as fol-
147] lows: *The plaintiffs entered into a contract to supply a rail-

way company with 3,900 tons of cast-iron chairs, to be sup-
plied from time to time, and paid for on delivery. They received
and paid for a certain portion. Others were received at periods
later than those specified at the request of the company’s agent, and
finally the plaintiffs were directed not to supply any more, as the

quence of such non-acceptance. This
is, ordinarily, the difference between
the price agreed to be paid for it and
its value, where such price exceeds
the value. If itis worth that price,
the damages are only nominal. But
there may be cases where the property
is utterly worthless in the hands of the
plaintiff, and there the whole price
. agreed to be paid should be recovered.
The present appears to us to be a case
of this description. The articles con-
tracted for were those for the exclusive
right of making and vending which

1 Philpotts v. Evans, 5 M. & W.
475.

2, Hochster 2. De Latour, 2 H. & B.
678; Frost v. Knight, L. R.,7 Ex. 111;
41 L. J. Ex. 78 in Ex. Ch. The refusal
to perform the contract must be dis-
tinct and unqualified, and must be
acted upon as a breach by the person
entitled to insist on performance. 2
Smith’s L. C. 85, 7th ed.; Reid 0. Hos-
kins, 4 E, & B. 979; 25 L. J. Q. B. 49;
26 L. J. Q. B. 8; Avery 0. Bowden, 5
E. &B, 714; 6 BE. &B. 963; 251. J.

the defendant has obtained a patent.
They could not be lawfully sold, by
the plaintifis; and were therefore
worthless to them,in the form in which
they were, when they were to be re-
ceived by the defendant, And there
is no evidence to show, that the mate-
rials of which they were made could
be converted to any other useful pur-
pose. We do not think, that, under
these circumstances, the defendant can
justly require us to set aside the ver-
dict, because the jury have given the
full amount which he agreed to pay.”

Q. B. 49; 26 id. 8; Danube, etc.,
Ry. Co. v. Xenos, 11 C. B. (N. 8.)
152; 138 id. 825; 31 L. J. ©. P. 84,
284 ; Bartholomew » Markwick,
16 C. B. (N. 8) 711; 33 L. J.C. P.
145; Inchbald ». Western Neilgherry
Coffee Co., 17 C. B. (N. 8.) 738; 84 L.
J. C. P. 15; Masterton o. Mayor of
Brooklyn, 7 Hill (N. Y.), 62; Dustan
2. McAndrew, 10 Bosw. (N. Y.) 13;
White », Salisbury, 33 Mo. 150; Tippin
0. Ward, 5 Oregon, 450.
Rervsat to Acozpr Stook or SHARES. 245
fi

defendants had no occasion for them, and would not accept or pay
for them. A large quantity of the chairs were in consequence never
manufactured or tendered; the declaration stated willingness to
perform the contract, but that the defendants refused to accept the -
residue of the chairs, and discharged and prevented the plaintiffs
from supplying it. It appeared that the plaintiffs had, for the pur-
pose of fulfilling their contract, entered into arrangements with iron
founders for the supply of iron, and enlarged their own foundry.
They had also made a sub-contract for the supply of a certain num-
ber of chairs, which they had to pay 500/. to get rid of. The judge
told the jury, the plaintiffs should be put into the same position as
they would have been if they had been permitted to complete the con-
tract. The jury gave 1,8002.damages. It was held that where, in
the case of an executory contract, the purchaser gives notice not to
manufacture any more of the goods, as he will not accept or pay for
them, the vendor, having been desirous and able to fulfill the con-
tract, may sue at once, without manufacturing or tendering the
rest. Also, that the damages were not excessive, as the jury were
justified in taking into their calculation all the chairs which remained
to be delivered, and which the defendants refused to accept.1 Of
course where there is no difference between the contract and market
price, or where the difference is in fawor of the vlaintiff, damages
can only be nominal.

Sec. 201. Duty of buyer to carry goods away.

In the absence of any express stipulation, it 7s the duty of the
buyer to carry away the goods bought within a reasonable time, and
of he neglects to do so, the seller may charge him warehouse room,
or bring an action for not removing them, should he be prejudiced
by the delay. But he is not entitled to sell them.*

Sec, 202. Damages for refusal to accept stock or shares.

*Exactly the same rule prevails where the contract is for [*148]

"Cort », Ambergate Ry. Co., 17 Q. see per Martin, B.,-Prehn », Royal
B. 127; 20 L.J. Q. B. 460. Bank of Liverpool, L. R., 5 Ex. 99; 39
* Valpy v. Oakeley, 16 Q. B. 941;20 L. J. Ex. 46.
L. J. Q, B. 880; Griffiths v. Perry, 1 3 Greaves v. Ashlin, 3 Camp. 426.
E. & E. 680; 28 L. J. Q. B. 204. And
e

946 Rerusat to Accerr Srook on SHARES.

the purchase of stock or shares.1 In one case,’ it seems to have
been thought, that, in an action for not accepting shares, the
difference between the contract price, and that on the day when they
were resold by the plaintiff, if at a reasonable time after the repu-
diation of the contract, and not that on the day of the breach, was
to be the measure of damages. But it has been decided by a later
case,’ that as there is no obligation on the part of the vendor to sell
at all, so if he refrain from selling at the time of the breach, he
takes upon himself all risk arising from further depreciation. When
there have been several refusals to accept, and negotiations on the
subject are still kept up, it will be for the jury to decide on what
day the contract was finally repudiated.*

Sec. 203. Contracts for shares not in existence, how to be construed.

Where the contract is for the delivery of scrip shares which are
not in existence, and known not to be £0, this limits the time for
performing the contract to the first day on which the thing con-
tracted for isin esse. Till that day arrives neither party can rescind
it without the assent of the other. Therefore if the vendee repudi-
ates the contract before the issuing of the scrip, etc., the vendor
may still tender it on the first day it is issued, and damages will be
computed from that time, and not from the date of the first refusal
to accept. But a contract or order for shares must be understood
to beacontract for whatever is understood by that word, in reference
to the particular thing bargained for.* Therefore where the defend-
ant contracted to sell plaintiff shares in a projected railway, there
being at the time neither scrip nor shares in existence, but he being
possessed of a letter of allotment entitling him to be a shareholder,
on the 12th of August he refused to perform his contract, and in
#149] October the scrip was issued; it *was held that, as he might

have performed his contract by handing over the letter of

1 See, as to the vendor’sright to an 129; Davis v. Haycock, L. R., 4 Ex.
indemnity, if by the buyer’s default 373; 38 L. J. Ex. 155.
his name remains on the register of 2 Stewart v. Cauty, 8 M. & W. 160.
shareholders, and he is obliged to pay 5 Pott v, Flather, 5 Rail. Ca. 85; 16
subsequent calls; Walker », Bartlett, L. J. Q. B. 366, 8. C.

18 ©. B. 845; 25 L. J. C. P. 263; Gris- 4Barned v, Hamilton, 2 Rail. Ca.
sell o. Bristowe, L. R., 80. P. 112; 387 624; Ogle v. Earl Vane, post, p. 253.
L. J. ©. P. 89; L. R., 4 C. P. 86; 88 = Pott o, Flather, udi sup.

L. J.C. P.10; Coles ». Bristowe, L. R., 6 Mitchell ». Newhall, 15 M. & W.

4 Ch. 3; 38 L. J. Ch. 81; Maxted o 308; Lamert v, Heath, id. 486.
Paine, L. R,, 4 Ex. 208; 88 L. J. Ex.
Rervusat to Detiver Goons. 247

allotment, the contract was broken in August, and that the damages
must be calculated from that day, and not from the time in October
when the scrip was issued.!

Sec. 204, Absolute undertaking to pay.

Of course the purchaser may bind himself absolutely to pay for
the chattel contracted for, whether he accepts it or not. Defend-
ants agreed to buy iron from the plaintiffs, promising to pay for it on
the 30th of April, if the delivery was not required before that day.
In an action for breach of this contract, it was held that the jury
should give the full price of the iron, though no specific iron had
been appropriated by the plaintiffs.’

Sec. 205. Damages for refusal to deliver goods.

Where the action is by the vendee against the vendor for not
delivering goods, and no payment has been made, the rule as to
damages is the same as in the case last discussed. There measure is
the difference between the contract price, and that which goods of a
similar description and quality bore at the tume when they ought
to have been delivered. Because the plaintiff has the money in his
possession, and might have purchased other goods of a like quality
the very day after the contract was broken.’ Therefore a buyer
cannot recover the loss of profit which he would have made by
carrying out a contract for resale at a higher price, made in the
interval between the first contract and the time for delivering.‘ The

1 Tempest v. Kilner, 3 C. B, 249.

formancc of the contract, while just
? Dunlop v. Grote, 2 C. & K. 153.

to the extent of the extra price paid,

3 Gainsford v. Carroll, 2 B. & C.
624; per cur.; Barrow v. Arnaud, 8 Q,
B. 609; Peterson v. Ayre, 13 C. B.
353. In one case an attempt was made
to obtain larger damages than accord-
ing to this rule, by showing that part
of the contract price was given in con-
sideration of speedy delivery, the con-
tract price being by so much higher
than the market price, but the evidence
was rejected, against the opinion,
however, of Martin, B.; Brady v.
Oastler, 3 H. & C. 112; 33 L. J. Ex.
300. The dissent of Martin, B., in
this case, would seem to be more sen-
sible and more just than the rule es-
tablished. Under this rule the vendee
is virtually punished for having paid
an extra price to secure a speedy per-

the vendor is benefited. The opera-
tion of the rule is harsh and unjust,
and in a case where an extra price, be-
yond the market price, is paid as an
inducement to a speedy performance,
and the fact is clearly established,
there would seem to be no good reason
why the extra sum paid should not be
added asa part of the damages, asthe
vendee has suffered loss in addition to
his other losses to that extent. As to
shares, see Powell v. Jessopp, 18 C. B.
336.

4 Williams ». Reynolds, 6 B. & S$.
495; 34 L. J. Q. B. 221.

The measure of damages for the
non-delivery of goods sold to be de-
livered at a certain time, is the value
of the goods at that time, with in-
248

*

Rerusat to Deniver Goops.

same doctrine prevails in cases where the contract is to be performed
on a certain day, and before that time the vendor declines to carry

it out.

The defendant had agreed to supply the plaintiff with a cer-

tain quality of tallow, to be delivered all in December, at 65s. per

terest, deducting the contract price;
and no more than such difference can
be recovered unless it is shown that
the use to which they were to be de-
voted was known to the seller. The
interest must be allowed asa part of
the damages from the time of breach,
and the jury have no discretion to
allow or disallow it. It is a matter of
right; Dana ». Fiedler, 12 N. Y.
40; Clark v0. Dales, 20 Barb. (N. Y.)
42; Bartlett v. Blanchard, 13 Gray
(Mass.), 429; Thompson ». Howe, 14
La. Ann. 45; Crosby ». Walker, 12
Cal. 85; Burr v, Williams, 23 Ark.
244; Wells v. Abernethy, 5 Conn,
222; Kitzinger v. Sanborn, 70 Ill. 146;
Parsons v. Sutton, 66 N. Y. 92 ; Miles
v. Miller, 12 Bush (Ky.), 184; Spiers
v. Halstead, 74 N. C. 620; Rickey
». Tenbroeck, 63 Mo. 563; Hilt ».
Smith, 32 Vt. 92; Boies v. Vincent,
24 Iowa, 387; Worthen v. Wilmot, 30
id. 555; Humphreysville, etc., Co. 2.
Vermont, etc., Co., 33 id. 92; Bickell o.
Colton, 41 Miss. 368; Kenter v. Wal-
baum, 45 Ill. 43; Foster v. Love, 48
Penn. St. 407; Field v. Kinnear, 4
Kan. 75; Havemeyer v. Cunningham,
35 Barb. (N. Y.) 515; Northrup 2.
Cook, 39 Mo. 308; Randen v. Bur-
ton, 4 Tex. 289; Phelps v. McGee, 18
Ill. 155; Shaw o. Nudd, 8 Pick.
(Mass.) 9; Davis v. Shields, 24 Wend.
(N. Y.) 322; Smith v. Barry, 18 Me.
122; Williamson a. Dillon, 1 H. & G.
(Md.) 144; Tobin . Post, 3 Cal. 373;
McDonald v. Hodge, 5 Hayw. (Tenn.)
85; Davenport ». Wells, 3 Iowa, 242;
Berry v. Dwinell, 44 Me. 255; Doud
». Fiedler, 12 N. Y. 40; Bailey ».
Clay, 4 Rand. (Va.) 346; Schner 2.
Dale, 25 Ind. 433; but no allowance
for profit or gain is to be made; Gil-
pin .v. Consequa, Pet. (U. S. C. C.)
85; Homer v. Wood, 16 Barb, (N. Y.)
886; nor for his trouble and expense
in procuring the contract to be made;
Stevens ». Luford, 7 N. H. 360; nor
for delay in business, caused by, the
non-delivery of the articles; nor for
expenses incurred in attempting to

procure them; nor for speculative
profits. Porter v. Woods, 3 Humph.
(Tenn.) 56.

Tn an action for not delivering hogs
at a certain place at a certain time,
the true measure of damages is the
difference between their value, at that
place, when they'were delivered, and
their market value there when they
should have been delivered. And
the plaintiff may also recover for any
injury to the hogs, occasioned by their
being detained on the way, and any
expense occasioned by such detention.
Sangamon & Morgan Railroad Co. 2.
Henry, 14 Ill. 156.

Where the defexdant contracted to
deliver to the plaintiff 1,000 barrels of
petroleum per month for one year, at
the plaintiff's oil works, the defend-
ant having the privilege of delivering
in advance if he chose to, but the
whole number of barrels not to ex-
ceed 12,000 for the year, and only
1,000 barrels to be settled for at the
end of any one year, and upon failure
to keep up the supply, the plaintiff to
have the privilege to supply himself
at the market price and charge the
difference to the defendant, and the
defendant failed to keep up the ,
supply, it was held that the plaintiff
was entitled to recover the difference
between the contract and market
price, at the time of each breach or
within a reasonable time afterward;
Shreve v. Brereton, 51 Penn. St. 175;
and the fact that the value has been
largely increased by causes that could
not have been foreseen by the parties
does not change the rule. Thus,
where the defendant contracted to
deliver a quantity of whisky to the
plaintiff, at a certain price at a future
day, and before the day arrived the
price of whisky was largely increased
by the passage of an excise law, it
was held that this circumstance did
not excuse the delivery and conse-
quently did not change the measure
of recovery. Edgar v. Boies, 118. &
R. (Penn.) 445.
Rervusat to Detrver Goops.

ewt.

249

On October 1st, when tallow was 71s. per ewt., the defendant

apprised the plaintiff that the goods were sold to another, and that

he would not execute the contract.

By a contract between A and B, it
was agreed that B should deliver to
A 1,000 barrels of flour, at $6 per bar-
rel, at any time within six months
from date, and give him six days’
notice prior to the time of such de-
livery. It was held, that the actual
breach of the contract, by non-de-
livery, must be taken to have occurred
on the last day of the six months, and
the damages be computed accord-
ingly. Quarles v. George, 23 Pick.
(Mass.) 400.

Where, in an action to recover the
price of wheat delivered under a con-
tract, at a price fixed, the defendant
sets up, by way of counter-claim, the
damages he has sustained by reason
of the plaintifi’s refusal to deliver the
whole quantity agreed upon, he is, if
he establishes such defense, entitled
to be allowed as damages the differ-
ence between the contract price of the
wheat not delivered, and the market
value thereof, at the time it was to
have been delivered, with interest on
that difference. Fishell 7. Winans, 38
Barb. (N. Y.) 228.

But in order to avail himself of a
defense, that the article furnished was
not of the quality agreed to be fur-
nished, he must either have offered to
return it, or have notified the vendor
of the defects. If he uses the prop-
erty without doing so, he is treated as
having waived the defects. Leaven-
worth v. Parker, 52 Barb. (N. Y.)
132.

Where the price is paid in advance
upon failure to deliver, itis held that
the highest market value is the measure
of damages. Clark ». Pinny, 7 Cow.
(N. Y.) 681; Potter o Hopkins, 25
Wend. (N. Y.) 417; Dey o. Dox, 9 id.
129; Maher v. Riley, 17 Cal. 415.
But where the market price at the
time for delivery is the same as, or
less than the contract price, only the
price paid and the interest thereon is
recoverable. Thus, A and B entered
into a written contract, whereby B
agreed to deliver to A, at New Or-
leans, 2,000 barrels of flour, on a cer-
tain future day, at the price of seven

52

On the 31st December the

dollars per barrel, and A agreed to
receive the flour, and pay $5,000 in
advance, and the residue by certain
installments, subsequent to the time
of delivery. A, accordingly, ad-
vanced $5,000, but B wholly failed to
deliver the flour. At the stipulated
time of delivery the price of flour at
New Orleans was only five dollars and
fifty cents. In an action brought by
A against B, stating the contract, and
assigning a breach, it was held that
the rule of damages was the money
advanced, with interest. Bush v.
Canfield, 2 Conn. 485. ‘‘ Where,”
said Swirt, C. J., in the case last
cited, “a man contracts to deliver any
article besides money, and fails to do
it, the rule of damages is the value of
the article at the time and place of
delivery, and the interest for the de-
lay. Though the promisee may have
suffered a great disappointment and
loss, by the failure to fulfill the con-
tract; yet these remote consequences
cannot, in such cases, be taken into
consideration by courts, in estimating
the damages. It is always supposed
that the party could have supplied
himself with the article at that price;
and if he intends to provide against
the inconvenience arising from such a
disappointment, he must make a con-
tract adapted to such objects. In
the present case, if the plaintiffs had
paid to the defendants the full sum
for the 2,000 barrels of flour contract-
ed for, then they would have been
entitled to recover the value of it at
New Orleans, where it was to have
been delivered. If the price had
risen between the time of purchase
and delivery, they would have made
a profitable speculation; otherwise, if
it had fallen. If they had paid noth-
ing, if the flour had advanced in
price they would have been entitled
to recover the amount of such ad-
vance. If the price had fallen, they
would have been entitled to recover
nominal damages for the breach of
the contract; though they might have
been subjected toa great loss, if the
contract had been fulfilled. This
950 RerusaL to Dretiver Goops.

*price of tallow was 81s. per cwt. It was held that the dam-
ages should be regulated by the price on the 31st December.
The court said, that the contract, being mutually made, could only
be dissolved by the consent of both parties. The defendant had all
the month of December to deliver the tallow in, and the plaintiff
was bound to receive it until after the 31st. It was said that the
plaintiff might have bought other tallow in the market; the answer
is he was not bound to do so; but further, the defendant might have
bought other tallow in the market on the 1st October, or any other

[*150]

subsequent day, and have delivered it if he would.’

Sec, 206. Where distinct times of delivery.

In this case it will be observed, the plaintiff was not bound to treat
the contract as broken at all till the 31st December, and therefore

proves that the actual damages suf-
fered by a party cannot always be the
rule of estimating damages for a
breach of contract.

In this case the plaintiffs advanced
a part of the purchase-money, that is,
the sum of $5,000; and no parallel
case has been adduced to show what
ought to be the rule of damages for
not delivering the flour. I think the
one adopted by the court at the cir-
cuit to be just and reasonable. The
defendant has violated his contract,
and it is not for him to say, that if he
had fulfilled it, the plaintiffs would
have sustained a great loss, and that
this ought to be deducted from the
money advanced. It is not for him to
say that the plaintiffs shall only re-
cover the reduced value of a part of
the flour which was to have been de-
livered in proportion to the advanced
payment. The contract was for the
delivery of an entire quantity of flour
and no rule can be found for an ap-
portionment in such manner. The
plaintiffs have been disappointed in
their arrangements; the defendant
has neglected his duty; and retains
in his hands $5,000 of the money of
the plaintiffs, without consideration.
Nothing can be more just than that
he should refund it; and I am satis-
fied that a better rule cannot be

adopted in similar cases.” See Miller
». Ward, 2 Conn. 494; Wells 2. Aber-
nethy, 5 id. 222; Stoddard ». Mix,
14 id. 12; Davis o. Shields, 24
Wend. (N. Y.) 322; Smethurst ».
Woolston, 5 W. & S. (Penn.) 106;
Porter ». Woods, 38 Humph. (Tenn.)
56; Clark »v. Marsiglia, 1 Den. (N.
Y.) 317; Shannon »v. Comstock, 21
Wend. (N. Y.) 457.

TRUMBULL, J., concurred in this
opinion. He remarked, that the
plaintiffs, by paying the $5,000, have
performed all that the contract re-
quired them to do before the receiving
of the flour. As the flour was not
delivered they were not bound, by the
contract, to pay any more. The de-
fendant, on the other hand, has
wholly failed of performance at the
time stipulated. He is liable for the
breach; and it will be conceded, that
if the plaintiffs had done nothing
they would be entitled to judgment
with nominal damages. Shall they
not now recover what they have ad-
vanced upon the contract, previous to
the breach? This sum is the actual
loss which they have sustained by the
breach, Complete justice has been done
and no new trial ought to be granted.
See, also, to same effect, Nash 2.
Towne, 5 Wall. (U. 8.) 689.

1 Leigh v. Paterson, 8 Taunt. 540; affirmed, Philpotts v. Evans, 5 M. &

W. 476,
Rervsat to Dettver Goons. 251

the entire damage was to be calculated from that date. But where
the contract is to deliver goods at certain specified periods, in speci-
fied quantities, this is in fact a set of distinct contracts ; and as each
period arrives, if no delivery, or only a partial delivery takes place,
the damages will be the difference between the contract price and
the market price on that day, of the quantity which ought to have been
then supplied. And even if the defendant absolutely repudiates his
contract at any period previous to the final date specified, and the
plaintiff elects to treat the contract as then at an end, yet in con-
sidering the question of damages, they will still be estimated with
reference to the times at which the contract ought to have been per-
formed.’

Sec. 207. Intermediate case.

An intermediate case arose under the following circumstances:
The defendants made a contract with the plaintiff in these terms,
“Sold to the plaintiff 5,000 tons of iron rails at 110. 5s. per ton,
delivered f. 0. b. at Newport, the delivery to commence by the 15th
of January, and to be completed by the 15th of May. In the event
of the defendants exceeding time of delivery they shall pay by way
of fine 7s. 6d. per ton per week.” The defendants made default in
the delivery, which took place in May, June, July, August and Sep-
tember, in *which latter month it was completed. The ques-
tion arose as to the mode of assessing damages. The court ex-
pressed the difficulty they should have had in interpreting the contract.
if it had not been for the final clause. Without it, they seemed to think,
that though no specified times were fixed, it would have been necessary
to hold that ratable or reasonable quantities would have been deliv-
erable at ratable or reasonable periods between 15th January and
15th May. But with the final clause they held the meaning to be,
that the fine was intended to cover all damages arising from delay,
and that it must be counted from the 15th May.’

[*151]

Sec. 208. Damages when no time is fixed for performance.

In all these cases there was a stated time fixed for the completion
of the contract. Where there is no time fixed, damages will be

1 Josling v. Irvine, 6 H. & N. 512; 2 Bergheim v. Blaenavon Iron Oo.,
30 L. J. Ex. 78; Brown v. Muller, L. L. BR, 10 Q. B. 319; 44 L, J. Q. B.
R., 7 Ex. 819; 41 L. J. Ex. 214; 92.

Roper v. Johnson, L. R., 8 C. P. 167;
42L.J.C. P. 65.
252 RerusaL to Detiver Goons.

calculated from the period at which the defendant refuses to per-
form it. Such a refusal leaves no further locus penitentie to him-
self, and of course the plaintiff cannot treat the agreement as any
longer subsisting. Therefore where in such a case the defendant
sold the goods to a third party, the measure of damages was held to
be the difference between the contract price and the price at which
they were sold. And in a similar case, where the plaintiff wrote,
‘“‘T beg to give you notice that I am prepared to take up the fifty
new Bradfords I purchased of you on the 3d of February last ; and
if those scrips are not delivered to me on or before the 10th inst.
I shall buy them in against you, and debit you with the difference ;”
Held, that as the plaintiff had given the defendant till the 10th to
deliver the shares, he was not entitled to calculate the damages with
regard to any amount the shares might have sold for subsequently
to the 10th.”

Sec. 209. Postponement of time for performance.

Where the time for performing a contract of sale has been post-
poned, at the request either of vendor or purchaser, and the contract
is ultimately broken, this has the effect of deferring the period at
which the breach takes place, and therefore alters the date with
reference to which the damages are to be calculated. The old con-
[#152] tract continues, but the date of the breach *is shifted. The

damages for non-delivery or non-acceptance of the goods will
be calculated at the market price of such goods on the last day to
which the contract was extended, if a date was fixed, or at the date

1 Greaves ». Ashlin, 8 Camp. 426.
In Clay v. Huston, 1 Bibb (Ky.), 461,
on a contract to deliver militia certifi-
cates to a certain amount, without
specifying any day for performance,
the value of the certificates at the
date of the contract and not at the time
of demand, was held the true mea-
sure of damages. But in Eastern R.
R. Co. v. Benedict 10 Gray (Mass.),
212, in an action for not delivering
stock according to an order which
specified ‘no time for delivery, the
value of the stock at the time of de-
mand was held to be the proper
measure.

In Dabovie ». Emerich, 12 Cal. 171,
it was held that in an action for a

breach of a contract to sell fruit on
the trees, the general measure of
damages is the market price at the
orchard, or, if there is no market
price there, the price in market less
the price of getting it there. Ina
contract by the terms of which cer-
tain corn was to be delivered, which
was paid for in advance, but which
the seller did not deliver, it was held
that the highest price of the corn at
any time between the contract time of
delivery and the time of verdict was
the measure, Kent 2. Genter, 23
Ind. 1.

* Shaw ». Holland, 15M. & W. 136.
See Cockerell v0. Van Diemen’s Land
Co., 18 C, B. 484.
RervsaL to Detirver Goops. 253

when the plaintiff refused to grant further indulgence, or at a rea-
sonable period after his last grant of an indulgence.’

Sec. 210. Delivery by installments

Where the delivery is to be by installments, difficulty may occur
upon such postponement, unless provision is made to determine
whether the installments are to continue or toaccumulate. Tyersv.
Rosedale and Ferryhill Co.’ was an instance of this nature.
There the defendants contracted to sell the plaintiffs 2,000 tons of
iron, in monthly quantities of 1661 tons, over 1871, or sooner if
required. The plaintiffs at various periods, between January and
December, 1871, requested the defendants to forbear from deliver-
ing the entire quantity contracted for. In December, 1871, they
required delivery of the whole undelivered balance of the 2,000 tons.
The defendants refused to deliver any more than their monthly
quantity due in December. In the original court, Mar, B., held,
in opposition to the majority, that the contract still continued, and
that the plaintiff was entitled to damages calculated upon the mar-
ket price of the whole undelivered portion of the 2,000 tons in
December. On appeal, the court held that the contract continued.
Cocxsurn, C. J., considered that the defendants were only bound to
continue their monthly installments till the whole delivery was made.
Buacgkgurn, J., was in doubt whether they were bound to deliver
the whole balance in December, or were entitled to deliver by
monthly installments, or to demand a reasonable time for delivery.
It was not necessary to decide the point, as the defendants in any
view were liable, as they had treated the contract as atan end. Nor
was it necessary to decide whether the damages should be assessed
according to the price at December, or at the subsequent monthly

1 Ogle v. Earl Vane, L. R., 2 QB.

quired, separate deliveries are made
275; 86 L. J. Q. B. 175 ; affirmed,

and setted for as furnished, each de-

L.R., 3 Q. B. 272; 37 L. J. Q. B.
771; Hickman v. Haynes, L. R., 10 C.
P. 598; 44 L. J. O. P. 358. See
Liansamlet Tea Plate Co., L. R., 16
Kq. 155.

7L. R., 8 Ex. 305; 10 Ex. 195; 44
L. J. Ex.130. Where, under a parol
contract for the future. delivery of a
fixed quantity of goods, at such times
and in such parcels as might be re-

livery is to be considered as in its na-
ture a separate and distinct contract,
and in an action for the price of the
parcel last furnished the buyer cannot
recoup for his damages growing out
of the inferior quality of the goods
previously delivered. Deming 2%.
Kemp, 24 Sandf. (N. Y.) 147. See.
also, §. W. Stage Co. v. Peck, 17
Kans. 371.
954 RervusaL to Dretiver Goops.

periods. The former period was that which the plaintiff had fixed,
and it happened to be advantageous to the defendants.

Sec. 211, Where goods are not procurable in market. Loss of profit an element
of value.

a *In all the above cases it has been assumed that the goods
[ ] were such as could be provided at once in the open market ;
therefore it is said that damages are to be assessed at their market
value at the time of the breach. Often, however, the subject-
matter of the contract is not procurable at all in the market, or not
at or about the time of breach. In such a case the principle
upon which damages are to be assessed is exactly the same.
They are to be taken at the value of the article at the time of breach.
But the mode of estimating this value is different, for there is no
market price which can be quoted. Hence cases of the sort appear
to be complicated by varying elements, which are really only
different tests for answering the question, what was the article worth
at the time ?

This principle was illustrated by the case of Borries v. Hutchin-
son! There the defendant had contracted to deliver caustic soda to
the plaintiff for shipment from Hull, delivery to be made in June,
July and August. The plaintiff had contracted to sell this soda to
a merchant in Russia, of course at an advanced price. Part was
never delivered at all; part not till September and October; there
was no market for caustic soda; the plaintiff wholly lost his profit
on the resale of the portion that was never delivered; and, in conse-
quence of the advanced season, he had to pay additional freight and
insurance on the part that was delivered late. It was admitted that
the defendant was liable for the loss of profit on the unde-
livered portion of the soda, and it was held that the additional
freight and insurance were also recoverable. Wiuuss, J., said, “ We
must see what was the difference between the value of the soda

'18C. B. (N. 8.) 445; 84 L. J.C.
P. 169. In the case of a buyer who
refuses to receive goods that he has
purchased, the measure of _ liability
in case of a resale is the difference
between the price at which the article
was sold and the contract price; Ap-
plegate v. Hogan, 9 Bouv. (Ky.) 69;

Pollinv. Le Roy, 30 N. Y. 549; Sala-
din v. Mitchell, 45 Ill. 79. But this
is upon the theory that he sells it
within a reasonable time after breach.
If he keeps it for an unwarrantable
period before reselling the rule would.
not apply. Pickering v. Bardwell,
21 Wis. 562.
RervsaL to Detiver Goons. 255

when it was to have been delivered, and when it was, in fact, deliv-
ered. Now, if the soda had been delivered at the time con
tracted for, it might have been easily transferred to Russia ; when it -
was delivered, it was also capable of being transferred to Russia,
but at a greater cost for freight and insurance ; therefore as a mere
question of what was the difference in value of the soda when deliv-
ered, and when contracted to be delivered, the difference between
what would have to be paid for freight and insurance at these peri-
ods constitutes the measure of damages.”

It is obvious that the liability to the profit upon the resale
*was determined by exactly the same consideration. The
value to the plaintiff of that portion which was never delivered, was
the price which he would have got for it in Russia, minus the cost of
getting it there. On the other hand, the plaintiff claimed to recover
as further damages the amount which his vendee in Russia had
recovered from him for non-delivery of part. This he was held not
entitled to recover. And clearly so, because that amount did not
enter into the value of the article at the time of breach, but wasan ul-
terior and remote consequence arising from events subsequent to the
breach, for which the defendant had not contracted to be liable.

(154)

Sec. 212. Additional expenses caused by breach of contract.

A latter case was governed by the same principle. The defend-
ant contracted to supply the plaintiff with 2,000 pieces of gray shirt-
ing for shipment on the 20th of October. Before the time for
delivery he informed the plaintiff that he would be unable to com-
plete his contract. Shirtings of this kind were only procurable by
a previous order to the manufacturer, but the plaintiff procured
others of the nearest possible quality at a higher price. These he
shipped to his vendee, but at the same price for which he had origi-
nally contracted. It was held that he was entitled to recover the
difference between what he had agreed to pay and what he was com-
pelled to pay. The value of the goods contracted to be supplied by
the defendant, at the time of his breach of contract, was the price
the plaintiff had to give for the substituted article. And Bracx-
BURN, J., likened it to the case of a carrier who fails to carry a
passenger to a given place, in which case the passenger is entitled to
256 Rervsat to Detiver Goons.

take the best substitute in the shape of a conveyance he can get, no
matter that it costs much more than the fare.’

Sec. 213. Loss of profits on resale.

Where there has been a failure to deliver goods which are not
procurable in the market, and they have been resold by the pur-
chaser previous to breach of contract, it often seems as if the question
of liability to pay for profits, which has already been discussed, would
arise for decision. In reality, however, the resale is an immaterial
circumstance, except so far as it may go to prove what the real value
was at the time of breach. Where the resale took place in the ordinary
course of commerce, it would be reasonable to accept it asa test of the
#155] then value *of the article. But where it was aspecial trans-

action, in which a special price was given, in consequence of
the peculiar exigencies of the purchaser, no such inference could be
drawn.’ Therefore, notice of the resale would, in the former case,
be unnecessary, in the latter, probably be useless.

Sec. 214. Article intended for use.

In the above cases the article to be supplied was intended for sale,
and damages were estimated according to its selling value. Where
an article is purchased not for sale but for use, damages will also be
assessed with reference to its value to the purchaser. But its value
will be determined by other considerations, that is to say, by the use
for which it was intended, the loss which followed from its not being
supplied, and the profit which would have been made out of it, if it:
had been delivered in time. These considerations again will be
affected by the further questions, whether the use for which it was
intended, and the loss or profit claimed for, were customary and
usual, or special and singular.’ In the latter case will arise the fur-
ther questions as to notice and contract, which have been already
discussed.‘

1 Hinde ». Liddell, L. R., 10 Q. B. 8 Portman v. Middleton, ante, p. 34;
265; 44 L. J. Q. B. 105. In Paine v. Smeed v. Foord, ante, p. 34; Gee o.
Sherwood, 21 Minn. 225, the same Lancashire and Yorkshire Ry. Co.,
doctrine was applied. ante, p. 85; Cory ». Thames Iron Works

2 See France ».Gaudet, 9C.B.(N.S.) Co., ante, p. 87; Fletcher o. Tayleur,
682; 80 L. J. C. P. 232; Godwin v. ante, p.22; Hales o.L. & N.W.Ry. Co.,
Francis, L.R., 5 C. P. 295; Horne v. ante, p. 39.

Midland Ry ,L.R., 70. P. 583; af- 4 Ante, pp. 41, et seq.
firmed, L.R., 8 0. P. 131, ante, p. 40.
Aortions ror not Repiacine Stoox. 257

Sec. 215. Actions for not replacing stock.

In the cases above discussed, no payment has been made for the
goods, and on this ground they were distinguished from actions for
not replacing stock, because in that case, the borrower holds in his
hands the money of the lender, and thereby prevents him from
using it altogether.1_ Accordingly, where there has been a loan of
stock, and a breach of the agreement to replace it, the measure of
damages is held to be the whole value of the stock lent, taken at such
a rate as will indemnify the plaintiff. Therefore, where the stock
has risen since the time appointed for the transfer, it will be taken

at its price on or before the day of trial.’

answer to say that the defendant

! Per Cur., Gainsford v. Carroll, 2
B. & C. 625.

2 Downes v. Back, 1 Stark. 254; Har-
rison v. Harrison, 1 C. & P.412; Shep-
herd v. Johnson, 2 East, 211; Owen v.
Ruth, 14 C. B. 327. In the last case
the rule stated in the text was laid
down as the invariable one, without
any reference to a rise or fall in the
price.

This rule was hinted at in Day ».
Perkins, 2 Sandf. Ch. (N. Y.) 359,
and was expressly held and applied
in Wilson v. Little, 2 N. Y. 443, and
in Arnold v. Suffolk Bank, 27 Barb.
(N. Y.) 424, where the defendant con-
verted the plaintiff’s stock by refusing
to issue or transfer it, it was held that
the measure of damages was not the
subscription price with interest, but
the highest price in market at any
time after the demand and refusal to
transfer, etc. This doctrine of en-
hanced value is applied also in cases
where raw material is taken and

- worked up into manufactured articles,
so long as the character of the mater-
ials have not been changed so as to
alter the title, the owner may recover
the improved or enhanced value.
Baker v. Wheeler, 8 Wend. (N. Y.)
505; Walther v Wetmore, 1 E. D.
Smith (N. Y. C.P.), 7. Thus, where
trees are taken wrongfully and manu-
factured into shingles, the owner may
recover of the wrong-doer the en-
hanced value of the timber as made
into shingles. Rice v. Hollenbeck, 19
Barb. (N. Y.) 664. O. agreed to tan

33

And it is *no
*
may be prejudiced by the 100]

a quantity of hides to be furnished by
H. and E., and return the leather to
them. H. and E. were to furnish the
hides on a commission for buying and
commission and guaranty for selling
the leather, and the hides were to be
insured and charged to O., and when
the leather was sold, the net proceeds,
after deducting costs, expenses, com-
missions, insurance, interest, etc., was
to be the profit and loss to accrue to
O. for tanning. It was held that this
was not asale to O., but a bailment,
and that in an action by H. and E.
for their conversion, the proper meas-
ure of damages was the value of plain-
tiff’s interest in the hides, and not the
enhanced value thereof when manu-
factured into leather. The plaintiffs
were therefore allowed to recover the
money paid by them, and the com-
missions for buying, the expenses, in-
terest, and the commissions upon the
value of the leather when ready for
the market. Hyde v. Cookson, 21
Barb. (N. Y.) 92.

Plaintiff put certain machinery into
defendant’s boat, under a special con-
tract; but before the work was com-
pleted the defendant removed the
boat and refused to pay for the
machinery or secure the price accord-
ing tothe contract. It was held in
an action to recover possession of the
machinery, that in estimating the
damages which the plaintiff had sus-
tained, the jury were to be governed
by the value of the machinery as es-
tablished by the parties in their con-
958 Actions For wot Repiacine Stock.

plaintiff's delaying to‘bring the action; for it is his own fault that
he does not perform his engagement at the time ; or he may replace
it at any time afterward, so as to avail himself of a rising market.'
In one case where it had fallen, it was estimated at its price on the
day it ought to have been replaced ;’ and in another case, where no
day was named for its replacement, and it had fallen in value, at its
price on the day it was transferred to the borrower.’ But the plain-
tiff cannot recover the highest price which the stock had reached at
any intermediate day,’ because such a measure involves the assump-
tion that he would have sold out upon that day, which is purely
speculative profit.

Sec. 216. Profits not allowed for.

Nor can he claim damages for any profit which he might have
made had he possessed the stock, at all events unless his wish to have
it back for that express purpose was distinctly communicated to the
defendant. Therefore, when the plaintiff lent a five per cent stock,
which was to be replaced on a fixed day, and after that day govern-
ment gave the holders an option to be paid off at par, or to commute
their stock for three per cents ; the plaintiff expressed to the defend-
ant a wish to have the stock replaced, that he might be paid at par,
_ but no wish to take the new stock; held that he was not entitled to
recover the price of so much three per cent stock as he might have
obtained in exchange for his five per cents."

Sec, 217. Bonus on stock.
In the case cited, the profits claimed were both contingent in their
nature, and collateral to the breach of contract. But where a bond

tract, so far as it could be applied,
not the value of such machinery apart
from the boat; and that defendant
could not reduce the damages by

! Per Grose, J., 2 Hast, 212..

? Sanders v.Kentish, 8 T.R.162; see
2 East, 212.

3 Forrest v, Hlwes, 4 Ves. 492.

4 M’Arthur 2, Lord Seaforth, 2 Taunt.
257.

5 M’Arthur 2. Seaforth, udi sup. But
where stock is transferred as security
for a loan, the lender ofthe money has
no right to deal with the stock, and if
he does so, the borrower is entitled to
the profits made; Langton ». Waite, L.

showing defects which his removal of
the boat prevented plaintiff from rem-
edying. Kidd v. Belden, 19 Barb.
(N. Y.) 266.

R., 6 Eq. 165; 87 L.J. Ch. 345. A
mortgagee who suffers a stock mort-
gage to continue after the time fixed
for replacing the stock, cannot in a re-
demption suit at a subsequent period,
when the market price is lower, exact
the price at the time originally fixed,
the mortgagor being entitled to re-
deem on replacing the stock. Blyth
v.Carpenter, L. R., 2 Eq. 501; 35 L.
J. Ch. 828.
Non-Dettvery or Goops Par For. ~ 959

was given to secure the replacement of stock, and payment in the
meantime of sums equal to the interest *and dividends, and [157]
a bonus was afterward declared upon the stock, it was held

by Sir Jonn Leacn, M.R., that in equity, and perhaps even at law,
the lender was entitled to be placed in the same situation as if the
stock had remained in his name, and was therefore entitled to the
replacement of the original stock, increased by the amount of the
bonus, and to dividends in the meantime as well upon the bonus as
upon the original stock.’

Sec. 218. Damages for non-delivery of goods, where payment has been made
American decisions.

The rules established in the case of a loan of stock were held to
be equally applicable where the loan was of mining shares.” There
appears to be a great similarity between these cases and that of a
contract for the purchase of goods, in which payment is made before-
hand. The plaintiff is equally kept out of his money, and therefore
equally unable to protect himself by going into the market to buy
that which the defendant has agreed to sell him. The defendant
has equally the use of the plaintiffs property, and is therefore able
to make all the profit by means of it, which the plaintiff could have
made. If the case is to be governed by exactly the same rules as
that of stock, it will require no further discussion. But upon this
point there seems to be very little agreement. The courts of the
different States of this country are in hopeless conflict. In New
York, the value of the article is taken at the highest price between
the time fixed by contract and the time of trial® unless there has
been undue delay on the part of the plaintiff in prosecuting his
claim by action. In such a case the court was inclined to think the
rule of damages should be the value of the article at the commence-
ment of the breach.‘ In Connecticut it is held that in an action for
breach of agreement to deliver, where the money is paid before-
hand, the plaintiff may in any case recover the money paid and in-
terest upon it; ° while in Pennsylvania, the court take the distinc

1 Vaughan v. Wood, 1 Myl.& K. Barb. (N. Y.) 424.

403. ‘Clark ». Pinney, 7. Cow. (N. Y.)
2 Owen 2. Routh, 14 C. B. 827. 681.
3 West 2. Wentworth, 3 Cow. (N. 5 Bush v. Canfield, 2 Conn. 485,

Y¥.) 82; Arnold o. Suffolk Bank, 27
260 Non-Detivery or Goons Pam For.

tion between an action for breach of the contract, and an action for
#158] money had *and received, on the ground of failure of con.

sideration. In the former case they hold that the value of
the article at or about the time it ought to be delivered is the meas-
ure of damages, even though that value be less than the sum paid.
In the latter case the money paid may be recovered.!

Sec. 219. English decisions. Dutch v. Warren. Startup v. Cortazzi.

The only two cases in England which touch the subject specifi-
cally do not tend to clear it up very much. In the first the defend-
ant agreed in consideration of 262/. 10s. to convey five mining
shares, as soon as the books should be open. They opened on the
12th of August, and the defendant refused to transfer. By that
time the value of the shares had fallen to 1757. The action was for
money had and received. Lord Mansrretp held that only the value
of the shares on the 12th of August was recoverable, saying, “ that
although the defendant received from the plaintiff 2622. 10s., yet
the difference money only of 1757. was retained by him against con-
science, and therefore the plaintiff, ex @guo et bono, ought to recover
no more. If the five shares had been of more value, yet the plain.
tiff could only have recovered the 262/. 10s. in this form of action.” *
So far as this case professes to decide that where a party utterly
refuses to perform his contract, he can retain any part of the money
paid in consideration of its performance, when sued for money had
and received, it may be doubted whether it is law now.* This
species of action was in its infancy in Lord Mawsrrexp’s time, and
he seems not to have noticed the inconsistency of allowing the
defendant to shelter himself, under the contract, from the effects of
an action, whose very foundation was the fact of the contract being
at an end. So far, however, as the decision shows, by implication)
that in an action on the contract, damages would be measured by
the value of the article at the time of breach, it goes in support of
the doctrine maintained in Pennsylvania.

It must be observed that this decision, as affecting mining shares,
is contrary to the recent one of Owen.v. Routh,‘ unless a distinction

1 Smethurst ». Woolston, 5 Watts * See Chit. on Cont. 548, 562, 9th
& Serg. 106. See all these cases in ed.;1 Wms. Saund. 269c;1 Wms.
full Sedg. on Dam. 264-277; p. 297 Notes to Saund. 367; Anonymous, 1

et seq., 4th ed. Stra, 407; id. 406, n., 8d ed.
* Dutch v. Warren, 2 Burr. 1011. 414 0. B. 327.
Noy-Dexivery oF Goons Parp For. 261

be drawn between the case of a purchase of *shares, paid
for in advance, and a loan of shares, to be returned on a
given day.

It is difficult to discover what principle is to be extracted from a
much later case than that just discussed. The defendants agreed to
sell and deliver on board plaintifi’s vessel, at Odessa, a certain quan-
tity of linseed at 30s. per quarter. For half of this they were paid
in advance, but on the arrival of the vessel at Odessa the defendants
refused to deliver the linseed. In February, when the cargo would
have arrived in England, if it had been delivered at Odessa, the price
was from 47s. to 50s. At the time of the trial it would have been
about 56s. The defendants paid money into court sufficient to cover
damages at the rate of 47s. The plaintiffs claimed to have them
estimated at 56s. The jury found that the former sum was suffi-
cient. On the motion for a new trial (which was refused), Lord
Asrvezr, OC. B., explained the grounds of the verdict as follows:
“The plaintiffs did not prove that they wanted this seed for any
particular purpose, or that they sustained any peculiar injury from
its non-delivery. The plaintiffs, however, insisted that they were
entitled to the profits which they might possibly have made upon it, |
if it had been delivered. The jury appear to me to wish to give no
more than the money advanced, and the interest upon it. I am not
aware of any rule for estimating damages for speculative profits,
besides taking the interest on the money advanced. It was not
proved that the plaintiffs could have made more than 5 per cent on
that money ; or that they had not credit at their bankers to that
extent, and thereby had sustained any inconvenience.” And ALDER-
son, B., said, “ The price at the time of notice was not the proper
criterion for estimating the damages; for as the plaintiffs had al-
ready parted with their money, they were not then in a situation
to purchase other seed. The more correct criterion is the price at
the time when the cargo would have arrived in due time, according
to the contract; when, if it had been delivered, the plaintiffs would
have been enabled to resell it. Another criterion is, to consider the
loss of the gain which the party would have made, if the contract
had been complied with. In the present case, the loss which the
plaintiffs have sustained arises from their being kept out of their
money. That is a matter to be calculated by the interest of the

[*159]
262 Non-Dguivery or Goops Pam ror.

[#160] money *up to the time when, by the course of practice, the

money could have been obtained out of court.”! It will be
observed that the finding of the jury in this case may have proceeded
from either of two principles, which have nothing in common, and
which are both sanctioned by the court. They did, in fact, give
damages proportioned to the price of the article at the time it ought
to have been delivered to the plaintiffs, so as to be turned to profit.
This is in accordance with the doctrine of Pennsylvania, and of
Dutch v. Warren. But whether they chose the sum because it did
accord with that price, and were merely fortified in their conclusion
by finding that it amounted to a return of principal and interest ;
or whether they chose it because it amounted to principal and inter-
est, without any reference to any other circumstance, we cannot tell.
If the former was their reason, we have the judgment of ALDER-
son, B., that it was the more correct criterion. If the latter, we
have also the opinion of the same Baron that it was another criter-
ion ; and the judgment of Lord Asmverr, who says that he was not
aware of any other way of estimating damages for speculative profits.
This opinion, by-the--bye, is in remarkable accordance with that
thrown out by the court of common pleas, in the case of Fletcher
v. Tayleur.’

Sec. 220, Further discussion of the point.

Such is the unsettled state of the law upon the subject. Mr. Sedg-
wick is of opinion that the period of breach is the true time, in-
all cases, for estimating the damages, unless it can be shown that the
article was to be delivered for some specific object known to both
parties at the time, and that thus a loss within the contemplation of
both parties has been sustained.’ This doctrine cannot be maintained
in England, if, as he also thinks, there is no solid reason for mak-
ing any difference between stock and any other vendible commodity.
It is quite settled that the price of stock may be taken at the time
of trial.‘ The case may, however, be distinguished on the ground
that stock may be supposed to be purchased rather as an investment
than for resale, while goods are bought expressly to sell again. Con-

' Startup o. Cortazzi, 2C. M. & R. 3 Sedg. Dam. 276; 310, 4th ed.
165. 4 Ante, p. 257.
217 C. B. 21; ante, p. 22.
Action ON WARRANTY. 263

sequently it may be assumed that *the former would have [#161]
remained in the possession of the buyer till the time of trial,

while no such presumption can be raised in the latter case. If this
be so, damages might fairly be calculated in regard to stock, at the
price it bore at the time of trial; in regard to goods, according to
their price at the latest period when we could be sure they would
have remained in the plaintiffs hands, viz., the time they ought to
have been delivered. This rule could produce no practical injustice,
for if ever this price proved less than that paid, the plaintiff would
have it in his power to treat the contract as rescinded, and sue for
money had and received, as on a failure of consideration.

Sec. 221. Damages when goods paid for by bill, which is dishonored. Order
for specific delivery of goods.

Whatever is finally settled to be the rule where goods have been
paid for in advance will equally apply where payment has been
made by bills, as long as they are current. But when they are dis-
honored the vendor is just in the same position asif no bill had been
given at all, and in an action against him, only the difference of price
can be recovered.”

By the Mercantile Law Amendment Act, 1856 (19 & 20 Vict., ch.
97), § 2, where specific goods have been sold, the court may order
execution to issue for their delivery, and the jury may be directed
to find, by their verdict, what the goods are, what sum the plaintiff
would have been liable to pay for their delivery, what damages, if
any, he would have sustained if the goods should be delivered under
execution, and what, if not so delivered.

Sec. 222. Actions on a warranty. Right to return goods.

In actions upon a warranty, the damages may depend consider-
ably upon the fact of the article having been returned or not; this
will in many cases be a matter entirely at the option of the vendor.
If a specific article has been sold with a warranty, and is found not
to answer it, the vendee cannot force the vendor to take it back, after
he has received it,” unless there is a special contract to that effect,”

'Valpy v. Oakeley, 16 Q. B. 941; ?Street v. Blay,2 B. & Ad. 456;
20 L. J. Q. B. 380; Griffiths v. Perry, Gompertz v. Denton, 1C. & M..207.
1E. &E, 680; 28 L. J. Q. B. 204. 3 Head v. en L. B., 7 Ex. 7;

; 41 L. J. Ex. 4.
264 Action on WARRANTY.

[#169] nor can he even refuse to receive it.1 Where, however, the

articles *purchased. are not ascertained when the bargain is
made, the purchaser may refuse to receive them, or send them
back, having only kept them a reasonable time to ascertain their
insufficiency.”

Sec. 223. Damages when article has been returned.

When the thing sold has been returned, and no special loss has
accrued, the damages consist of the price paid.* If, however, no
payment has been made, the damages could, it is apprehended, be
merely nominal. As the contract is rescinded, no claim for the price
could ever be made, and the hypothesis assumes that no other injury

has taken place.

Sec. 224. When article has not been returned.

Where the article has not been returned, the measure of damage
will be the difference between its value, with the defect warranted
against, and the value which it would have borne without that

defect.

It was formerly laid down that the measure would.be the

difference between the contract price and that for which it would
sell with its defect. But the rule in England is now settled as

[#163]

1 Dawson v. Collis, 10 C. B. 523.
Where the property in the specific
chattel has passed by the contract, it
is settled that the purchaser cannot re-
ject it. See 2 Smith’s L. C. 29, 7th
ed. ; Heyworth v. Hutchinson, L. R.,
2Q. B. 447; 36 L. J. Q. B. 270.

?Okell »o. Smith, 1 Stark. 86;
Street ». Blay, ubt sup.; Azemar 2.
Casella, L. R., 2 C. P. 481; 36 L. J.
C. P. 124; affirmed in Ex. Ch. L. R.,
20. P. 677; 36 L. J. C.. P. 263; Ban-
nerman »v. White, 10 C. B. (N.S.)
844; 31, L. J. C. P. 28; Heilbutt ».
Hickson, L. R., 7 C. P. 488; 41 L. J.
C. P. 228. The vendee is not bound
to send the goods back, but may call
on the vendor to take them away.
See Lucy v. Mouflet, 5 H. & N. 229;
29 L. J. Ex. 110.

3 Caswell v. Coare, 1 Taunt. 566;

stated above,” and the doctrine *in America is the same.°
Where the article has been resold by the purchaser, before

Heilbutt ». Hickson, L. R., 70. P.
438; 41 L. J.C. P. 228,

* Caswell v. Coare, ubi sup. And
such is the rule where the title fails;
Anding v. Perkins, 29 Tex. 348; Burt
v. Dewey, 31 Barb. (N. Y.) 540; Arthur
v. Moss, 1 Oregon, 193.

5 See per Butuer, J., 1 T. R. 186;
per Lord Expon, C. J., Curtis ». Han-
nay, 3 Esp. 82; Clare v. Maynard, 6
A. & E. 519; Cox », Walker, id. 523,
n.; Jones v. Just, L. R., 3 Q, B. 197;
37 L. J. Q. B. 89; Loder v. Kekule,
3C.B. (N. 8.) 128; 27 L. J.C. P.
27. In this last case there had been
a prepayment by the plaintiff on ac-
count of the goods, but it was held
that this could not be taken into ac-
count in apportioning the damages.

In connection with actions for
breach of warranty, may be mentioned

6 Sedg. Dam. 293; 329, 4th ed.
Action on Warranty. 265

the breach of warranty has been discovered, the price obtained at
this second sale may be left to the jury, as a mode of estimating
what the real value of the chattel, if perfect, would have been; but
the difference between this price and the purchase-money cannot be
given as specific damage, on account of the loss of profit which
might have been made on it.?

Sec. 225. Question as to effect of rule where goods have not been paid for.

It is quite clear that this rule does complete justice where the
stipulated price has been paid, and it is presumed that the same rule
would apply where the price had not been paid, as the purchaser
would still be liable to an action for it. A question might arise,
however, as to the effect of a recovery for breach of warranty, sup-
posing the purchaser to be subsequently sued for the price. The
general rule in such cases is, that the inferiority of the article may

be given in evidence in reduction of damages.”

a case in which a company had im-
properly inserted a person’s name in
their register, and given him certifi-
cates for shares which he was thus
enabled to sell. The vendee paid for
the shares, and was registered as a
shareholder, but his name was subse-
quently removed on an application by
the real owner, under 25 & 26 Vict.,
ch. 89, § 35, for the rectification of
the register. The company were con-
sidered to have held out the vendor as
entitled to the shares, and were
directed to pay to the innocent ven-
dee the value of the shares on the day
on which the company first refused to
recognize him as a shareholder, with
interest at four per cent as damages.
If the shares had been good shares,
and the company had refused to put
the vendee on the register, the meas-
ure of damages would have been the
market price at that time; if no mar-
ket price at that time, then a reason-
able compensation to be assessed by
the jury for the loss of the shares; Re
Bahia and San Francisco Ry. Oo., L.
R., 3 Q. B. 584; 37 L. J. Q. B. 176;
followed in Hart ». Frontino, etc.,
Gold Mining Co., L. R., 5 Ex. 116, n.
And such is the rule in this country;
Tuttle ». Brown, 4 Gray (Mass.), 457;

1 Clare v. Maynard; Cox v. Walker,
ubt sup. .
34

Could this be done

Grose ». Hennessey, 13 Allen (Mass.),
889; McGavock »v. Wood, 1 Sneed
(Tenn.), 181; Overbay v. Lighty, 27
Ind. 27; and the damages are to be
measured according to the price at the
place of delivery, even though the
vendor knew they were destined for a
higher market; Lattin v. Davis, Hill
& D. Suppt. (N. Y.) 9; where manu-
factured articles are contracted for,
the measure is the difference in value
between the article as it ‘is, and
what its value would have been if
it had been as the contract provided ;
Woodworth v. Woodburn, 20 Ill. 184;
Whitmore v. So. Boston Iron Co., 2
Allen (Mass.), 52. But if the vendee
has sustained other additional in-
jury, which is either the immediate
consequence of the failure of the
vendor to perform his contract, or
a material incident thereto, he may
recover such damages. Wintz ».
Morrison, 17 Tex. 372; and where
there is no evidence as to the value
of the property as warranted, except
what may be inferred from the price
stipulated in the sale, that price may
be taken as what its value would
have been, had it been as warranted ;
Houghton ». Carpenter, 40 Vt. 588.

2 Ante, p. 159; McAlpin v. Lee, 12
Conn. 129.
266 Action on WaRRANTY.

under the circumstances supposed? Take the case of a horse sold
for 1002. with a warranty, and assume that sum to be its real value
if sound. It turns out to be unsound, and is resold for 30/. The
purchaser sues on his warranty, and recovers 707. The sums make
up the 1002. for which he is liable, and no injury is done him. But
if, when sued for the price of the horse, he could set up its unsound-
ness, 80 as to reduce the damages to 301., it is plain that he would
pocket 702. by the transaction. It is conceived that he would be
precluded from doing so by the former recovery. It has, no doubt,
been held in several cases, that it is no bar to an action for breach of
contract in the quality of a chattel, that its inferiority had been
previously used in reducing the price to be paid for it! But it by
no means follows that the converse proposition is true. In both
the cases cited in the note, the action was to recover on account of
some special damage beyond the mere inferiority of the chattel, but
arising *out of it. Such special damage could not have been

ees et : ; [*164]
given in evidence, nor allowed for, in the former action ; and
on this express ground the second action was permitted. But in an
action on the warranty, the inferiority is the principal ground of
damage, though other matters may also come into consideration.
Another decision, which at first sight appears more in point, will be
found equally beside the question. An action was brought by a
servant for his wages, and it was held that his misconduct might be
set up as an answer, though it had formed the ground of an action
by his master, and he had been dismissed on account of it.* But
there the former action had been for seducing an apprentice to quit
the plaintiff, not for any inferiority in the defendants own services.
The misconduct was set up in each case with quite a different object ;
in the one case it was alleged as an independent offense, from which

' Mondel ». Steel, 8 M. & W. 858;
Rigge v. Burbridge, 15 id. 598. The
purchaser, when sued for the price, is
not bound to set up the defects in the
chattel in reduction of damages. He
may pay the full price, and then sue
for breach of contract; Davis 2.
Hedges, L. R., 6 Q. B. 687; 40 L. J.
Q. B. 276; or an allowance may be
made to him in an action forthe price
of sucha sum as constitutes the dif-

ference between the price agreed
upon and the value of the property
sold, but the defendant is not entitled
toa reduction of the damages beyond
such difference, upon the ground that
the property, at the stipulated time
and place of delivery, was of greater
value than the price paid. McAlpin v.
Lee, ante,

aaa) v. Robinson, 5 B.& Ad.
Action on WarRAnNty. 267

special damage accrued ; in the other as a cause justifying dismissal,
and therefore negativing all claim to wages.

Sec. 226. Expense of keep.

When the vendor refuses to take back the article, the vendee may
recover all expenses necessarily caused by its lying on his hands till
it can be resold; as for instance the keep of ahorse. But the time
must be a reasonable one, and what is a reasonable time is a question
for the jury, and depends upon the circumstances of each case.!
But no damages can be recovered on this account, unless the pur-
chaser has tendered the article to the seller,” nor, except for expenses
subsequently incurred.*

Sec. 227. Damages where article bought for a specific purpose.

When a contract embodying a warranty is entered into with refer-
ence to a particular purpose, damages ought to be given for the loss
incurred by the failure of that purpose. Where the article sold
was scarlet cuttings, which were shreds of scarlet cloth used in trade
with China, and the declaration alleged that they were not scarlet
cuttings, whereby they were of no use or value to the plaintiff,
Lord ExrensoroveH told the jury that, under these words, they
were to consider the effect of their being of no use or value in China.
“Tam decidedly of opinion,” he said, “that the value is to be un-
derstood as the value which *the plaintiff would have
received had the defendant fully performed his contract ;”
and this view was supported by the court on a motion for a new
trial.“ In another case, where a link in a chain cable, which had
been sold with warranty, broke, it was held that the value of the
anchor which was lost along with it might be recovered.’ But this
case was treated as of no authority in Hadley v. Baxendale.’ And
Avperson, B., said that on the same principle the jury might have
given the value of the ship, if it had been lost. No doubt the
enormity of the damages which would be recoverable in such a

[*165]

1 Chesterman v. Lamb, 2 A. & E. 3 West ». Anderson, 9 Conn. 107.
129; Ellis 7 Chinnock, 7 C. & P. 169, ‘Bridge v. Wain, 1 Stark. 410.

> Caswell v. Coare, 1 Taunt. 566. ’Borradaile ». Brunton, 8 Taunt.
Quere, ought there not to bea set-off 535.
against this item of damage, where 623 L. J. Ex. 180.
the article has been used beneficially,
as,-for instance, a horse ? .
268

case is very startling.

ActTION oN WARRANTY.

But if a chain cable is sold for the express

purpose of holding a ship to its anchor, and if, through some defect
in it, the ship drifts on shore, it is difficult to see why the damages

should stop at any smaller amount.

Where the pole of a carriage

broke, in consequence of which the horses became frightened and
were injured, the court held that the sale of the pole carried with it
an implied warranty that it was reasonably fit for its purpose; and
that as to damages, the proper question to leave to the jury was,
whether the injury to the horses was or was not a natural con-
sequence of the defect in the pole.! If a similar question were left

4Randall ». Newson, 2 Q. B. D.
102; 46 L. J. Q. B. 259. See Smith
» Green, 1 C. P. D. 92; 45 L. J.
C. P. 28.

The doctrine of implied warranty
upon the sale of property for a special
purpose is extended to cover the sale
of articles for the consumption of man
or beast for the purposes of food. This
doctrine is well illustrated in the case
of French v. Vining, 102 Mass. 182.
In that case the defendant sold to the
plaintiff a quantity of hay to be fed to
her cow, upon which the defendant
knew thata quantity of white lead had
been spilled. Hehad attempted to re-
move all the hay affected by it, and
supposed he had, but knowing that the
plaintiff wanted the hay to feed to her
cow, he did not disclose the fact to her

that paint had been spilled on it, and

as a result she fed the hay to her cow
and it sickened and died. The court
held that the defendant was liable.
Amegs, J., in delivering the opinion of
the court, said: ‘‘It may, perhaps, be
more accurate to say, that inde-
pendently of any express or formal
stipulation, the relation of the buyer to
the seller may be of such a character
as to impose a duty upon the seller dif-
fering very little from a warranty. The
circumstances attending the sale may
be equivalent to a distinct affirmation
on his part as to the quality of the thing
sold. A grocer, for instance, who sells
at retail, may be presumed to have
some general notion of the uses which
his customers will make of the articles
they buy of him. If they purchase
flour, or sugar, or other articles of daily
domestic use for their families, or grain
or meal. for their cattle, thie act of sell-

ing to them under the circumstances is
equivalent to an affirmation that the
things sold are at least wholesome and
reasonably fit for use, and proof that
he knew at the time of the sale that
they were not wholesome and reason-
ably fit for use, would be enough to
sustain an action against him for de-
ceit, if he had not disclosed the true
state of facts. The buyer has a right
to suppose that the thing which he
buys, under such circumstances, is what
it appears to be, and such purchases
are usually made with a reliance upon
the supposed skill or actual knowledge
of the vendor.”

Soin reference to articles sold for
domestic use, generally, there is an
implied warranty that they are fit for
such use; Winsor v. Lombard, 18
Pick. (Mass.) 57; Emerson v. Brig-
ham, 10 Mass. 197; Van Bracklin v.
Fonda, 12 Johns. (N. Y.) 468; but
this is restricted to cases where the
seller is presumed to know the quality
of the goods, or is a professed
dealer therein; Moses v. Mead, 1 Den,
(N. Y.) 378; Burnby v. Bollett, 16 M,
& W. 644; and is not extended to
cases where it is evident that the pur-
chaser relies upon his own judgment,
or upon the brand upon the goods;
Emerson v. Brigham, ante; Winsor 2.
Lombard, ante; but in all cases where
the seller says or does any thing which
misleads a person in purchasing the
article, upon his own judgment, or
upon faith of the brand thereon, he
is liable for fraud, even though he
sold it with all faults. This is well
illustrated in the case, Shepherd ».
Kain, 5 B. & Ald. 240, where the
defendant advertised a vessel for sale,
Aotion on WARRANTY.

269

to the jury in the case of a ship lost through a faulty cable, there

seems to be no reason why their verdict should not be acted on.

If

the damages are a hardship to the vendor of a cable, the shipwreck

is an equal hardship to the purchaser.

and represented it as a copper-fastened
vessel, but that it was to be sold with
all faults. The vessel lay in the
water, so that its bottom could not
be examined, and it turned out that
she was only partially copper-bottom-
ed, and was not what is known to the
trade as a copper-fastened vessel.
The court held that the defendants
were liable, and that the words with
all faults must be construed to mean
all faults which a copper-fastened
vessel had.

So, where fish or beef or any arti-
cles of food are sold as merchandise
in barrels that have been branded
and inspected, or that bear a particu-
lar mark, or the name of a particular
manufacturer, the vendor can be re-
garded as warranting only that the
goods are of the class, kinds and
description represented by the marks
or brands, and, in the absence of an
express warranty or representations
amounting thereto, is not liable if the
quality of the articles is not good;
Winsor v. Lombard, ante ; Emerson v.
Brigham, ante; but if the vendor
knew that the goods were bad, he
would be liable for fraud. Emerson
v. Brigham, ante. A description of
goods in an invoice, as of a particular
description or quality, is held to
amount to a warranty that they are
of that quality; Hastings 0. Lovering,
2 Pick. (Mass.) 220; Bridge v. Wain,
1 Stark. 410; so as to articles of food
or drink, there is an implied warranty
on the part of a manufacturer that the
goods are merchantable. Thus, in
Holcombe »v. Hewson, 2 Camp. 391,
the plaintiff was a brewer, and en-
tered into a contract with the defend-
ant, by the terms of which the defend-
ant was to take all the beer he manu-
factured, and that if he did not, he
should pay an advanced rent for the
house he occupied. The beer proved
bad, and not merchantable, and in an
action by the brewer upon the con-
tract, it was held that he must be re-
garded as having warranted the beer

In a recent case, where a

to be of a merchantable quality. And
generally, in the sale, personally, of
any kind or description, there is an
implied warranty that the goods are
of the kind or description for which
they are sold, and of the quality des-
ignated in the contract; Hogins 2.
Plimpton, 11 Pick. 97; Hastings
v, Lovering, 2 id. 214; Osgood ».
o. Lewis, 2 Harr. & G. (Md.) 495;
and if the vendor knows that the
property is not what it purports to
be, or what the vendee supposes he
is buying, or that it is unwholesome,
deleterious, or dangerous, silence
would be deceit of itself. McDonald
v. Snelling, 14 Allen, 290; Thomas v.
Winchester, 6 N. Y. 397; Langridge
v. Levy, 2 Mees. & Wels. (S. C.) 509.

In all cases of the sale of articles of
food there is an implied warranty that
they are wholesome, and not, by
reason of disease, decay, or adultera-
tion, injurious to health; this implied
warranty grows out of a duty to the
public on the part of the vendor, as
well as out of the contract itself, and
the fact that the vendor does not
know that the articles are unwhole-
some or dangerous, does not absolve
him from this duty or obligation, if
there is any thing in the nature of
the article itself that should put him
on his diligence. Quite recently, in
England, a grocer was indicted for
selling adulterated tea, injurious to
the health of those using it. The de-
fendant showed that he did not know
that the tea was adulterated, but it
being shown that such adulteration
could be readily detected by dealers
in tea upon examination, the court
held him amenable to punishment.
See Langridge v. Levy, 2 M. &
W. 519; Thomas ». Winchester; The
Same, 6 N. Y. 397; Goodrich »v.
People, 19 id. 574; State ». Nor-
ton, 2 Ired. (N. C.) 40. So, where
goods are sold by sample, the law
implies a warranty that the goods
shall conform in kind to the sample,
but not that the goods are sound or
270

AoTION oN WARRANTY.

passenger vessel was warranted to start on a particular day, and did
not, the plaintiff was held entitled to recover not only the passage
money, but his expenses incurred while waiting.’

Where seed barley was sold, warranted to be Chevallier seed bar-
ley, and, on being sown, produced a crop of inferior quality, the
natural amount of damage was considered to be the difference
between the value of the inferior crop and of that which would

have come up if Chevallier seed barley had been
*Tn this case claims for compensation had been made upon
the plaintiffs by various persons to whom they had sold the

[#166]

in good condition; Andrews v. Knee-
land, 6 Cow. (N. Y.) 354; Sands v.
Taylor, 5 Johns. (N. Y.) 404; Galla-
gher v. Waring, 9 Wend. (N. Y.) 20;
Mfg. Co. v. Lawrence, 4 Cow. (N. Y.)
440; Bradford ». Manly, 13 Mass.
189; Conner v. Henderson, 15 id. 319;
Beebe v. Robert, 12 Wend. (N. Y.)
413; and in the case of all executory
contracts for goods there is an implied
warranty that they shall be merchant-
able; Hamilton v. Ganyard, 34 Barb.
(N. Y.) 204; and in all cases
of the sale of personal property
upon inspection, where the means
of knowledge on the part of
the vendor and vendee are equal, no
warranty is implied, but if the article
is such that the vendor is presumed
to have some superior knowledge in
reference to it, the law implies a war-
ranty that it is of the kind and qual-
ity represented; Lord v. Grow, 39
Penn. St. 88; Deming ». Foster, 42
N. H. 165; but on the sale of notes
and other negotiable securities, there
is an implied warranty that they are
genuine; Thompson v. McCullough,
31 Mo. 224; Sill » Rood, 15 Johns.
(N. Y.) 230; Ritchie v. Summers, 3

1Cranston v. Marshall, 5 Exch. 395.

2Randall v. Raper, H. B. & E. 84;
27 L. J. Q. B. 266; Passenger 2.
Thorburn, 85 Barb. (N. Y.) 17; Fer-
ris v. Comstock, 88 Conn. 513. This
rule has been adopted in several cases
in this country involving a similar
question. Passinger v. Thornburn, 34
N. Y. 634; Van Wyck ». Allen, 69
id. 62; White ». Miller, 71 id.
118; Wolcott ». Mount, 36 N. J.L.

sown.”

Yeates (Penn.), 531; 6 Mass. 182.
Where the purchaser knows that an
article is not as represented, the law
will not imply a warranty; Wood v.
Ashe, 1 Strobh. (8. C.) 407; nor where
the defects complained of are visible,
or the sources of information are
equally open to both parties; Hudg-
ins v. Perry, 7 Ired. (N. C.) 102; nor
will a warranty be implied as to de-
fects where there is an express war-
ranty. The contract will be treated
as covered by, and included in that
warranty, and excludes all idea of any
other or further warranty; nor will
a warranty be implied when there is a
written bill of sale. Sparks 2. Messick,
65 N. C. 440. When a merchant sells
goodsto be sent to a distant market, it
is said that the law will imply a war-
ranty that the goods are properly
packed and fit for such shipment.
But that this warranty does not go
to the extent that the goods shall re-
main sound for any particular time.
The contract is answered if at the
time of shipment they were in a
proper condition. Mann v, Evertson,:
32 Ind. 355.

262. But in Ferris ». Comstock, 83
Conn. 513, in an action upon a‘ war-
ranty of a sale of onion seeds that
proved worthless, it was held that the
plaintiff could recover as damages the
price paid for the seed, the value of
his labor in preparing the ground for
the seed, after deducting the benefit
to the ground, and the value of his
labor in planting the seed, with inter-
est on the whole.
Acrion on WARRANTY. 271

seed barley with a similar warranty. It was held that the plaintiffs
might recover the amount of the damages sustained by the sub-pur-
chasers without having previously made them compensation. The
plaintiffs were under clear legal liability to compensate them, and it
was for the jury to assess, once for all, the probable amount which
they would have to pay.’

Sec. 228. Expense incurred in advancing value of the article.

It is still an undecided point whether the plaintiff can recover any
expenses he has been at in advancing the value of the thing sold.
The question arose in the following manner: The defendant sold a
horse to the plaintiff, with warranty, for 45/., and the latter resold
it to C for 552. On discovering its unsoundness, he had to give up
his bargain with C, and he then sued the defendant, stating the loss
of his bargain as special damage. It was contended that the addi-
tional 102. for which the animal could have been resold might be
recovered as the amount of expense and care bestowed on the horse,
by which its actual value was raised. Corzrmex, J., said, “The
plaintiff cannot recover upon this. record. The declaration merely
alleges that the plaintiff bought the horse for so much, and sold him
at so much more, not alleging any cause of the advance. . This
shows only that the plaintiff is seeking to recover for a good bar-
gain lost: which, it is admitted, cannot be done.” Parrzson, J.,
said: “Whether or not he could have recovered if the damage had
been differently laid, it is not necessary to say.”’ In the particular
case it is quite clear that the plaintiff had not added 102. worth of
value to the horse, for it ultimately sold only for 170. 4s., and it is
incredible that it could have been only worth 7. 4s. when it came
into his possession. If the value were really added, however, it is
difficult to see how it could form a claim for damage. Suppose a
young horse, with a latent defect that renders it only worth 20/., is
sold with a warranty for 40/., and the purchaser by skillful training
adds so to its real value, that if sound it would sell for 60/., but
with its blemish will only sell for 407., and does sell for that price.
Here, on the principle stated before, *he will obtain the [167]
difference between its value sound and unsound, which

‘Randall o. Raper, supra; and see L. J. C. P. 143.
Dingle ». Hare, 7 C. B. (N. 8.) 145; 29 2Clare v. Maynard, 6 A. & E. 519.
272 MiIsREPRESENTATION.

appears to be 207. His skill in training has been paid for already,
in the increased price of the horse, and there can be no reason why
it should be paid for again. Of course it would be very different if,
in consequence of the unsoundness, all his labor and expense had
been utterly thrown away, or produced much less result than they
ought. In such a case the question would probably be, whether it
was bought with a view to any purpose which would render such
labor and expense necessary, the purpose being part of the contract.
As, for instance, if an untrained horse were bought for a lady’s use,
and warranted free from vice. If it turned out incorrigibly vicious,
it never would be fit for the purpose, and yet the preliminary train-
ing must have been contemplated by the seller. Under such cir-
cumstances, the expenses would appear to be fairly recoverable, not
because they had added to the value of the animal, but precisely
because they never could.

Sec. 229. Costs of former action.

Where an article sold with a warranty has been resold with a
similar warranty, and the second purchaser, on discovering the
defect, brings an action against his vendor, the costs incurred in this
action are sometimes recoverable as damages, in an action by the
first purchaser against his vendor. This subject, however, has been
sufficiently discussed in a previous chapter.!

Sec. 230. Misrepresentation.

Where there is a misrepresentation of the character or condition
of the goods, the vendor is responsible for all injury which is the
direct and natural result of the purchaser’s acting on the faith of his
representation. Therefore, where a cattle dealer fraudulently repre-
sented a cow to be free from infectious disease, when he knew that
it was not so, and the purchaser ‘placed it with five others which
caught the disease and died, the latter was held entitled to recover
as damages, in an action for fraudulent misrepresentation, the value
of all the cows.’ And the same rule would be applied where there
was no fraud, but the beast was warranted free from disease and both

“Ante, p. 130. 559; 85 L. J. C. P. 299; Sherrod ov.
° Mullett ». Mason, L. R.,1C. P. Langdon, 21 Iowa, 518.
273

parties contemplated its being placed with other stock! But

*although it is illegal to bring a glandered horse into a public
[*168] . . se ‘ :

market or fair, there is nothing illegal in a simple sale ; there-
fore a person who sold a glandered horse without warranty, and
without fraudulent misrepresentation, was held not responsible for
disease communicated to other horses of the purchaser’s in the stable
to which he removed it.* But sending animals which are destined
for human food to be sold at a public market, carries with it an
implied warranty that they are not, to the sender’s knowledge, in-
fected with a disease dangerous to life. Consequently, if any injury
followed from breach of this implied warranty, the owner would be
liable for the consequences.’

MisREPRESENTATION.

1 Smith o Green, 1 C. P. D. 92;
45L. J. 0. P. 28. In this country
the rule is practically as stated in
the text. A person who knowingly
sells animals with a contagious dis-
ease, representing them to be sound,
is liable to the purchaser for all the
consequent effects on other animals
owned by him; Faris v. Lewis, 2 B.

35

Monr. (Ky.) 375; Rose v. Wallace,
11 Ind. 112; Sherrod o. Langdon, 21
Towa, 518.

° Hill v. Balls, 2 H. & N. 299; 27
L. J. Ex. 45; see per Wruss, J., L.
R.,1C. P. 563.

? Ward v. Hobbs, 2Q. B. D. 150;
46 L. J. Q. B. 473.
274 Satz or Lanp.

CHAPTER XI.

SALES OF LAND.

Suc. 231. Actions for breach of contract to convey land.
232. Damages when contract void.
233. What damages cannot be recovered.
234, Damages incurred after knowledge of defective title.
935. Damages for the loss of plaintifi’s bargain. Bain 0. Fothergill.
286. Reason of exception.
237. Damages when failure is not from want of title.
238. Refusal to make title. Engel. Fitch. Express agreement to
convey, notwithstanding defect of title.
239. Loss of bargain.
240, Liquidated damages.
241. Doubtful title.
242. Damages for vendor's delay.
248. Actions for refusals to complete purchase of land.
244. Damages beyond deposit.
245. Forfeiture of deposit.
246. Agreement to lease.
247. Damages on covenants for title and against incumbrances.
. 248. Where something has passed to the plaintiff by the grant.
249, When nothing has passed .
250. When possession never obtained. When plaintiff is in possession.
251. Covenant for quiet enjoyment. Damages on eviction.
252. Mode of calculating value of land; when it has increased.
253. Increase in natural value.
254. Outlay of capital.
255. Damages in case of eviction from part of the land.
256. Deed is conclusive as to amount of purchase-money.
257. Effect of covenant for quiet enjoyment.
258. Covenant for further assurance.
2659. Covenant against incumbrances,
260. Principle of damages for breach.
261. Contingent incumbrances.
262. Covenant to review.
268. Fitness for habitation.

. Sec, 231. Actions for breach of contract to convey land.
Actions by vendee against vendor for refusal to convey.
Where the vendor is unable to complete the contract which he has
Breacu or Contract to Convey. 275

entered into, the vendee may sue him for its breach, and in such an
action he is always entitled to recover the deposit with interest, as
special damage when so laid ;? or, even without being laid, from the
day of demand under 3 & 4 W. IV, ¢. 42, s. 28; he is also entitled
to the expenses of investigating title,” such as comparing deeds,
searching for judgments, and journeys for that purpose,’ even though
he has not paid his attorney’s bill before commencing the action.*

Sec. 232. Damages when contract void.

Of course in no case can any action be brought on the contract to
sell unless there has been a binding one. But where the contract is
for any reason void, the purchaser may recover the deposit or pur-
chase-money, and a moiety of the auction duty, if payable by pur-
chaser, as money had and received to his use, but neither interest
(unless under 3 & 4 *Wm. IV, c. 42, s. 28) nor expenses of [169]
investigating title.” At any time up to the completion of the
purchase the purchaser may rescind the contract, and recover his
money on account of defect of title; but he cannot do so once the
purchase is finally closed, and the conveyance fully executed by all

the parties whose assent is necessary.”

1De Bernales ». Wood, 3 Camp.
258; Farquhar v. Farley, 7 Taunt.
592. As to the vendee’s liability to
pay interest upon the purchase-money
from the day fixed for completion,
under the common condition of sale
to that effect, see Williams ». Glen-
ton, L. R., 1 Ch. 201.

The rule of damages is the purchase-
money with interest, if the vendor acts
in good faith and with no wrongful
intent; Garrard v. Dollar, 4 Jones’
(N. C.) Law, 175; Dumars 2. Miller,
34 Penn. St. 319; McNair o. Comp-
ton, 35 id. 23; Hiner ». Rich-
er, 51 Ill. 299; Bowser v. Cessna, 62
Penn, St. 148; Thompson v. Guthrie,
9 Leigh (Va.), 101. Where, how-
ever, the vendee acts in bad faith, a
different rule prevails, and if the
value of the land has increased the
vendee may go either for a specific
performance of the contract, or may
recover the enhanced value at the time
when the conveyance should have
been made, as well as such damages
for the expenses and trouble that he

Where he has purchased

has necessarily incurred in endeav-
oring to procure a title. Dumars »v.
Miller, ante; Burr vo. Todd, 41 Penn.
St. 206; Barbour v. Nichols, 3 R.
I. 187; Shaw ». Wilkins, 8 Humph.
(Tenn.) 647; Brinckerhoff v. Phelps,
24 Barb. (N. Y.) 100; or, in other
words, the value of the land at the
time of the breach; Clagett 0. Easter-
day, 42 Md. 617; or such a sum as
will place the vendee in the same
position pecuniarily that he would
have been in if the vendor had per-
formed his contract; Chartier o.
Marshall, 56 N. H. 478.

? Walker v. Moore, 10 B. & C. 416.

’Hodges v. Lord Litchfield, 1
Bingh. N.C. 492; Orme ». Brough-
ton, 40 Bingh. 533.

4 Richardson v, Chasen, 10 Q. B.
756. The vendee’s attorney cannot
sue the vendor; Wilkinson v. Grant,
18 C. B. 819; 25 L. J. C. P. 233.

5 Gosbell ». Archer, 2 Ad. & Hil. -
500.

6 Johnson v. Johnson, 3 B. & P.
162.
276 Saxe or Lanp.

different lots, he may abandon one for defect of title and keep the
others, but he cannot retain part and give up part of the same pur-
chase.! Each lot set up at an auction is a distinct sale.’

Sec. 233. What damages cannot be recovered.

But he cannot recover expenses incurred previous to the time
fixed for the performance of the contract, which the party enters
into for his own benefit ;* nor the expense of surveying the estate ;*
nor of a conveyance drawn in anticipation of the purchase being
completed ;* unless the vendee, by the misrepresentations of the
vendor, and without laches on his own side, has been induced to
think that every thing has been satisfactorily ascertained ;° nor the
costs of a chancery suit for specific performance, when brought by
the vendor against the vendee ;’ or vice versa ;* nor costs incurred
after it was known that a good title could not be made out;* nor
the profits arising from a resale of the estate, unless perhaps where
there was fraud in the original vendor, and then only in an action
based upon the fraud; nor the expenses of such resale; nor the
sums which he was liable to pay to the sub-contractors for the ex-
penses incurred by them in investigating the title; for all this

[#170]

damage arose from his own premature act, and not from the
*fault of the vendor ;" nor losses arising from the resale of

stock procured for the estate ;” nor the value of improvements made:
upon the premises, though the agreement to let expressly contem-
plated such improvements being made, and stated “ that it was un-
derstood by and between the parties, that the defendant was pos-
«sessed of the said premises for his own life, and the life of one Mrs.
M., and the survivor of them,” which turned out not to be the ease.
Damages were limited to 40s., found by the jury to be the worth of

162.

2 Sm. Merc. Law, SALE; Emmerson
v. Heelis, 2 Taunt. 38.

’ Hodges v. Litchfield, supra ; Han-
slip ». Padwick, 5 Exch. 615; ante, p.
106.

41d.

5Id.; Jarmain v. Egelstone, 5 C. &
P. 172.

° Richards v. Barton, 1 Esp. 268.

" Hodges ». Litchfield, supra.

*Malden »v. Fyson, 11 Q. B. 292;
overruling Jones v. Dyke, Sug. V. &

? Johnson v. Johnson, 3 B. & P. P. 1078, 11thed.; and see ante, pp. 118,
: 122

® Pounsett v. Fuller, 17 C. B. 660;
25 L. J. O. P. 145; Sikes v. Wild, 1
B. &S. 587; 30 L. J. Q. B. 325; af-
Se 4B. &S. 421; 82L. J. QB.

5.

0 Bain ov. Fothergill, L. R., 7E. &
I. App. 168, 206.

" Walker v. Moore, 10 B. & C. 416.

” Hodges v. Litchfield, supra ; God-
win v. Francis, L. R., 5 C. P. 295; 39
LJ. ©. P. 121.
Breace or Oontract ‘to Convey. a7

the lease (one for two years) without the improvements, on the day
when plaintiff offered to take it! Nor can the vendee recover as
damages the loss incurred by selling out stock with a view to the
completion of the bargain, for the plaintiff had a chance of gaining
as well as losing by the fluctuation of the price.” *

Sec. 234. Damages incurred after knowledge of defective title.

And he can in no case recover damages in respect of any thing
that has occurred since he discovered the defect in the title. Be
cause any proceedings taken with such knowledge must be taken,
either from a total indifference to a good title being made out, or
from a dishonest desire to force on a contract which he is aware
cannot be performed, for the sake of getting costs from the vendor.
In neither case would the damage be attributable to the false repre-
sentation or breach of contract by the vendor.’

Sec. 235. Damages for the loss of plaintiff's bargain. Bain v. Fothergill.

The liability of the vendor of land to pay damages to the vendee
for the loss of his bargain has lately been authoritatively settled by
the decision of the House of Lords in Bain v. Fothergill.* Till that
decision, there had always been a struggle to bring each particular
case within the general ruling in Flureau v. Thornhill,’ or the
exception to that ruling in Hopkins v. Grazebrook.* The general
ruling was that such damages were not recoverable (in the absence
of fraud) where the contract went off through a defect of title. The
supposed exception was, that they were recoverable where the vendor
*had no title at all, and knew he had none, or knew he had a [71]
different title from that which he contracted to sell. But
Hopkins v. Grazebrook, and all the cases which depended upon it,
are now overruled. “The rule as to the limits within which dam-
ages may be recovered upon the breach of a contract for the sale of a
real estate must be taken to be without exception. If a person enters
into a contract for the sale of a real estate, knowing that he has no
title to it, nor any means of acquiring it, the purchaser cannot re-

' Worthington »v. Warrington, 8 C. “LL. R., 7 HL. 158; 48 L. J. Ex.

B. 134; 18 L. J.C. P. 350. 243, -
? Per BLACKSTONE, J., Flureau ». 52 W. BL. 1078.
Thornhill, 2 W. Bla. 1078. °6B. &C. 31.

* Per BLACKBURN, J., Gray 0. Fowler,
L. R., 8 Ex. 282; 42 L.J. Ex 161.
278 Sate or Lanp.

cover damages beyond the expenses he has incurred by an action for
the breach of the contract; he can only obtain other damages by an
action for deceit.” *

Sec, 236. Reason of exception.

No doubt this is an exception to the ordinary rule of the common
law, that where a person sustains loss by reason of a breach of con-
tract he is prima facie entitled, so far as money can do it, to be
placed in the same situation with respect to damages as if the con-
tract had been performed.” But the reason is, that contracts for the
purchase of real estate are of an exceptional nature. In the case of
a sale of a chattel, the vendor must know, or at all events is taken
to know, what his right to the chattel is. But in regard to real
estate there must always be some degree of uncertainty as to whether
a good title can be effectively made by the vendor ; and, taking the
property with that knowledge, the purchaser is not entitled to re-
cover any loss on the bargain he may have made, if in effect it
should turn out that the vendor is incapable of completing his con-
tract in consequence of his defective title. All that he is entitled
to is the expense he may have been put to in investigating that
matter. He has a right also to take the estate and complete the
purchase with that defective title, if he thinks proper to do so. But
he is held to have bargained with the vendor upon the footing that
he (the vendee) shall not be entitled, under all circumstances, to
have that contract completed, and therefore he is not put in a posi-
tion under such a contract to make a resale, before the matter has
been fully investigated, and before it is ascertained whether or not
the title of his vendor is 2 good one.*

Sec. 237. Damages when failure is not from want of title.

172] *Of course the ondinaty rule of common law applies where
the cause of failure arises from some other source than want

of title. In such a case the plaintiff may recover for any special

damage he has received, as, for instance,-loss in his trade by not

1 Per Lord CHELMSFORD, Bain »v. * Robinson 0. Harman, 1 Exch, 855;
Fothergill, L.R., 7 EH. &1. App. 207; 18L. J. Ex. 202,
see per BLACKBURN, J., Gray». Fowler, — * Per Lord Harueriry, Bain v.

L. R., 8 Ex. 249, 288; 42 L.J. Ex. Fothergill, L.R., 7E. & I. App. 211;
161, 177. 43L. J. Ex, 268.
Breaou or Contract to Convey. 279

getting settled in his house! And so, where the plaintiff having
recovered a judgment for 2802. against B, agreed with the defend-
ant to withhold execution until a certain day, in consideration of
which the defendant agreed that he would, on or before that day,
erect a house, and cause a lease of it to be granted to plaintiff—such
lease, when granted, to be in satisfaction of the judgment; the
defendant broke his agreement, and it was held that the measure of
damages was the value of the house, and that it was properly esti-
mated at 280/., being the value of the thing which the plaintiff had
agreed to give up in consideration of it.’

Sec. 238. Refusal to make title. Engel v. Fitch. Hxpress agreement to con-
vey notwithstanding defect of title.

An intermediate case between that just stated, and the previous
class of cases, is where the contract fails from a defect of title, but
a defect which the vendor ought to have removed, and could have
removed: in other words, not from an inability to make title, but a
refusal to do so. An instance of this occurred in the case of Engel
v. Fitch,* where the vendors, who were mortgagees, refused, on the
ground of expense, to turn out the mortgagor who was in possession,
and thereupon the purchaser refused to complete, and brought his
action. It was held that the vendee was entitled to recover not only
his deposit and the expenses of investigating the title, but also the
profit, which it was shown he could have made on aresale. This
decision was passed before the final decision in Bain v. Fothergill.
So far as it rests upon the authority of Hopkins v. Grazebrook, and
the line of cases which followed Hopkins v. Grazebrook, it is of
course now overruled. But it is submitted that the decision may
perfectly well stand, without assuming the existence of any cases
forming an exception to the.rule laid down by Flureau v. Thornhill.

1 Ward v. Smith, 11 Price, 19. mence. In consequence of the de-

? Strutt o. Farlar, 16 M. & W.
249.

3L. R., 8Q. B. 314; 37 L. J. Q.
B. 145; affirmed, L. R., 4 Q. B. 659;
88 L. J. Q. B. 304. The plaintiff
agreed with the defendant to take a
lease of premises belonging to the de-
fendant, for the purpose, as the de-
fendant knew, of carrying on a trade
which the plaintiff was about to com-

‘trade.

fendant’s willful refusal to fulfill his
agreement, the plaintiff was unable
for fifteen weeks to commence his
Held, that in addition to
judgment for specific performance of
the agreement, damages must be
awarded in respect of the plaintiff's
loss of profits from his trade during
the fifteen weeks. Jaques v. Millar,
6 Ch. D. 153.
280 SaLe or Lanp.

The vendor had a perfectly good title, but he refused to go to the
expense which was necessary, in order to hand over to the purchaser
[173] that *which he had undertaken to deliver. It was just as if

he had refused to produce or deliver up the title deeds,
because they were in the hands of his banker, who had a lien upon
them for a loan. It is now settled that every contract for the sale
of land is made upon the understanding that it may fail on a defect
of title. But there is no understanding that it may fail because
the vendor does not choose to go to the expense or trouble of per-
forming his part’ of the contract. In remarking upon Engel v.
Fitch, Lord Harueruey said: “The vendor in that case was bound
by his contract, as every vendor is bound by his contract, to do all
that he could to complete the conveyance. Whenever it is a matter
of conveyancing, and not a matter of title, it is the duty of the ven-
dor to do every thing that he is enabied to do by force of his own
interest, and also by force of the interest of others*whom he can
compel to concur in the conveyance.....There could be no doubt
whatever in that case that he was acting in gross violation of his
contract, which he had the power of performing. Whether or not
‘the proper mode of correcting that abuse was by giving damages to
the plaintiff in respect of the loss of his contract, I will not stop to
inquire ; but it is quite clear that that case was exceedingly different
from the case of Flureau v. Thornhill, where it turned out on inves-
tigation that the vendor had no legal title.”} And so, in another
case, Turner, L. J., said: “The vendor is bound to complete the
contract, and if he does not take the steps which are necessary to
enable him to do so, he is liable for damages upon the contract ; and
heavy damages would be given if, having the means of completing
the sale, he should decline to take the proceedings necessary for
that purpose.” ”

It has also been held that the rule in Flureau v. Thornhill does
not apply in cases where the agreement shows upon its face that the
vendor has not as yet got, and therefore possibly may never get,
the title which he undertakes to convey ; yet he expressly under-

1 Bain v, Forthergill, L. R.,7 BE. &I. 337; 82.3. 0. P. 191; Gray Fowler,
App. 209; 48 L. J. Q. B. 267. See asto L.R., 8 Ex. 249; 42 L. J. QB. Ex. 161,
action for not delivering abstract of _° Williams v. Glenton, L. R., 1 Ch.
title, Steer v. Orowley, 140. B.(N.'S.) 209; 35 L. J. Ch. 288,
Breacu or Contract to Convey. 281

takes at once, or on a given date, to put the purchaser in possession ;
and the purchaser in consideration *of such agreement, under- [174]
takes to do, and does, something which cannot be undone, and
which is of permanent benefit to the vendor; for the very nature of
the undertaking, on both sides shows that it is not dependent on the
contingency of a good title being made out. In such acase the
damages for breach of agreement will not be merely nominal. The
purchaser will be entitled, under the general rule of common law,
to such a pecuniary amount as is the difference between the present
state of things, and what it would have been if the contract had
been duly carried out.)

Sec. 239. Loss of bargain.

Where a purchaser is entitled to damages for the loss of his bar-
gain, if the vendor has resold the estate, the price at which it has
been resold is prima facie evidence of the market value, and the
first vendee will be entitled to recover the difference between it and
the price which he had contracted to pay.’

Sec. 240. Liquidated damages.

It is of course competent to the parties to fix the measure of
damages on breach of contract; therefore, where the plaintiff agreed
to lend defendant money on mortgages, and defendant was to make
out tile within a specified time, in default of which the agreement
should on the part of the plaintiff, if he thought proper, be utterly
void ; and it was further agreed “that the defendant should pay to
the plaintiff all costs and charges incurred by him or them in inves-
tigating the title to the said premises, and of any deeds or other
instrumemts which must have been prepared in consequence of the
said agreement, if the same should have been prepared at the desire
of the defendant ;”— it was held that the plaintiff could set up no
claim for interest on money which lay idle in his hands for several

' Wall v. City of London Real Prop- C. P.121; Springer o. Berry, 47 Me.
erty Co., L. R., 9 Q.B. 249; 48 L.J. 3880; Gardner », Armstrong, 31 Mo.
Q. B. 75; Charlier v. Marshall, 56 N. 535. If there has been no resale,
H. 478. the measure of recovery is the

* Engel o. Fitch, L.R., 4 Q.B.667; value of the land at the time of the

38 L. J. Q. B. 306; in Ex. Ch.Godwin breach with interest. Brinckerhoff v,
0. Francis, L.R., 5 C. P.295; 89L.J, Phelps, 24 Barb. (N. Y.) 100.

36
282 Covenants FoR TITLE.

months before the treaty finally failed though he had informed plaintiff
of this fact, without however making any stipulation as to interest.’

Sec. 241. Doubtful title. :

A purchaser is not bound to accept a doubtful title,’ even with an

[178] indemnity ;° and where the vendor does not *show a clear

title by the day specified, the purchaser may rescind the con-
tract and recover back his money, without waiting to see whether
the seller may ultimately be able to establish his title or not,’ even
in a case where on such title being finally made out, a court of
equity would compel the vendee to accept the estate and pay the
money.” .

Where, however, the purchaser has been let into possession of the
land, so that the parties cannot be replaced in statu quo, he cannot
rescind the contract, and sue for his deposit as money had and
received. His remedy is on the contract.’ .

Sec. 242. Damages for vendor's delay.

In a suit for specific performance damages are not awarded under
21 & 22 Vict., c. 27, s. 2, for the vendor’s delay in completing his
contract, where it is a case of fee simple property, nor unless there
has been special damage, as from destruction of the property in the
meantime, or from efiluxion of time in a short lease.’

Sec. 243. Actions for refusal to complete purchase of land.

Actions against the vendee of land by the vendor for refusal to
complete his contract stand on exactly the same footing as actions
for not accepting goods.’ In one case the plaintiff in an action of
this sort seems to have recovered the whole purchase-money.’ But
it is now decided that that is not the correct rule. ‘“ The plaintiff
cannot have the land and its value too.”

1 Sweetland ». Smith,1 C. & M.
585.

2 Hartley ». Pehall, Peake’s N. P. C.
178; Wilde v. Fort, 4 Taunt. 334;
Jeakes v. White, 6 Exch. 873; Penni-
all v. Harborne, 11 Q. B. 368.

3 Blake v. Phinn, 3 C. B. 976.

4 Wilde vo. Fort, 4 Taunt, 334.

5 Td, 834; per Lord ELLENBOROUGH,
Seward v. Willock, 5 East, 208.

* Hunt o. Silk, 5 East, 449; Black-
burn v. Smith, 2 Exch, 788.

7 Chinnock v, Marchioness of Ely, 84
L. J. Ch. 399.

87% M. & W. 478. A railway com-
pany which, after giving a statutory
notice of intention to take lands, fails
to take the necessary steps for assess-
ing the compensation, is responsible
for damage sustained by the owner.
Morgan », Metropolitan Ry. Co., L.
R., 8 C. P. 553; 87 L. J... P. 265.

® Hawkins 0. Kemp, 3 Hast, 410.
Covenants FoR TITLE. 283

“ The measure of damages is the injury sustained by the plain-
viff by reason of the defendants not having performed their con-
tract. The question is, how much worse is the plaintiff by the
diminution in the value of the land, or the loss of the purchase-
money, in consequence of the non-performance of the contract?” }
Accordingly, where defendants had been put into possession of land
under an agreement to purchase, and had taken from it a quantity
of brick clay, the damage was held to be the interest on the purchase-
money up to the *commencement of the action, and the valie 176]
of the clay... The usual conditions of sale by auction are,
that if the vendee fail to complete the purchase, the vendor may
sell and the vendee shall pay expenses of resale, and make good the
deficiency of price, if any.* And the same principle will be applied,
even without any express stipulation. Accordingly where the pur-
chaser declined to accept land on account of an objection to title,
which was held to be bad, and the vendor sold again for a lower
sum, it was held that he was entitled to recover as damages the
difference between the price contracted for and that which he ulti-
mately received.*

Sec. 244. Damages beyond deposit.
Where a contract for sale contained the following stipulation —

“ Lastly, if the purchaser shall neglect or fail to comply with any of
the above conditions, the deposit shall be forfeited as liquidated

1Laird v. Pim, 7M: & W. 474.

The vendor is entitled to be made
whole, consequently he is entitled to
recover the difference between the
value of the land and the contract
price, or in other and more accurate
words, the difference between the con-
tract price and the price at which it
could have been sold at the time of the
breach. Old Colony R. R. Co. a.
Evans, 6 Gray (Mass.), 25; Wilson v.
Holden, 16 Abb. (N. Y.) Pr. 183; and
if the vendor has resold the land,
and no fraud is shown, the price at
which he sold itis prima facie evi-
dence of the value of the land at the
time of the breach, but the jury are
not bound thereby and may find the
value from other evidence. Adams
v. McMillan, 7 Port. (Ala.) 73. In
Nortlr Carolina it has been held that

the vendor having offered to perform,
he may recover the purchase-money
with interest. Garrard 2. Dollar, 4
Jones’ (N. C.) L. 175. In a case where
mutual covenants were entered into
by which a house was to be built, and
received in exchange for a house and
land, the measure of damages for
failure to perform would be the
difference in value between the house
and lot to be conveyed and the house
to be built. Laraway v. Perkins, 10
N. Y. 371. The cash value of the
land must be taken, and not its value
for a particular purpose or upon a
sale upon credit. Lewis». Lee, 15
Ind. 499.

2 Laird vo. Pim, 7 M. & W. 474.

3 Ex parte Hunter, 6 Ves. 94.

‘ Noble ». Edwardes, 5 Ch. D. 878.
284 Covenants FoR TITLE.

damages to be retained by the vendors;” held, that this applied
only to a breach of the conditions of sale, but not to a breach of the
entire contract to buy, and that on a wrongful abandonment of the
purchase the vendor might recover damages beyond the amount of
deposit ; as for instance, the auctioneer’s charges for the abortive
sale, and the costs incurred by him in preparing to complete the
sale.

Sec. 245. Forfeiture of deposit.

Where parties contract, as they frequently do by a condition of
sale, that the deposit money shall be forfeited if the purchaser fail
to carry out his contract, the deposit cannot, nor can any part of it,
be recovered back on the ground that the forfeiture was in the
nature of a penalty, and the actual loss to the vendee was less than
the amount of the deposit.” In fact, the cases distinguishing be-
tween a penalty and liquidated damages do not apply to a pecuniary
deposit, which is in reality not a pledge but a payment in part of the
purchase-money.’ It results from this, that if the seller seeks to
recover damages beyond the amount of the deposit, he must give credit
for the deposit which he has retained. Therefore, where a contract *for
77] sale contained a condition that if the purchaser should fail to

comply with the conditions the deposit should be forfeited to
the vendor, who should be at liberty to resell, and any deficiency
upon resale, together with the expenses, should be made good by the
defaulter, and on non-payment should be recoverable as liquidated
‘damages, but that any increase of price at the second sale should
belong to the vendor, it was held that, in estimating the loss on a
resale, the deposit, although forfeited, was to be taken into account
as diminishing the deficiency.*

Sec. 246. Agreement to lease.

Similar principles would’ be applied to an agreement for a lease.
The owner of houses agreed with H. to grant him a lease of certain
premises for ten years, at an annual rent of 500/. At the end of
one year H. became bankrupt, and his trustee under the liquidation
disclaimed the agreement. It was held that the lessors might prove

‘Icely ». Grew, 6 Nev. & M. 467; * Sugd. Ven. & Pur. ch. 1, &§ 3, 18,
Essex v. Daniell, L. R., 10 C. P. 588. p. 40, 18th ed.

2 Hinton », Sparkes, L. R, 3 C. P. ‘Ockenden ». Henly, E. B. & E.
161; 87 L. J.C. P. 81. 485; 27 L. J. Q. B. 361.

 
CovENANTS For TITLE. 285

their claim under § 23 of the bankruptcy act, 1869, and that the
measure of the injury sustained was the difference between the rent
to be paid under the agreement. and what they could now obtain
for the property.’

Sec. 247. Damages on covenants for title and against incumbrances.

Analogous to the case of warranties in sale of chattels are the
various covenants for title, authority to convey, quiet enjoyment,
and against incumbrances which are usual upon transfers of real
property.

The cases upon this point in England are very scanty, while they
are to be found in remarkable abundance in America. It is to be
regretted that the multiplication of courts of independent jurisdic-
tion in that country should make their decisions often a source of
embarrassment, rather than an assistance in legal investigation.

Actions may be brought for breach of the covenant for title, and
authority to convey, before any eviction or disturbance of the plain-
tiff has taken place.” What ought to be the amount of damages
under such circumstances ?

Sec. 248. Where something has passed to the plaintiff by the grant.

It is plain that the conveyance may, notwithstanding the
*defect of title, pass something to the covenantee, or it may [178]
in fact pass nothing at all. The former state of facts oc-
curred in a very old case. “B covenants that he was seized of
Bl’acre in fee simple, when in truth it was copyhold land in fee,
according to the custom. By the court. The covenant is broken.°
And the jury shall give damages, in their consciences, according to
that rate, that the country values fee simple land, more than copy-
hold land.” * This is exactly the same rule as we have seen before
in the case of warranty of chattels personal ; namely, that the mea-
sure of damages is the difference between the value of the thing as
it is, and its value as it was warranted to be.® And so in a case in
New York, where, on a similar covenant, it turned out that the
grantors had the fee in two-sixths of the premises, and a life estate

1 Ex parte Llynvi Coal & Iron Co.; | —_? Not broken, in the original, but
In re Hide, L. R., 7 Ch. 28; 41 L. J. clearly by a misprint.
Bank. 5. 4 Gray v. Briscoe, Noy, 142.

* Kingdon ». Nottle, 4 M. & 8. 58; 5 Ante, p. 264.
Ex parte Elmes, 33 L, J. Bkcy. 23.
286 Covenants For TITLE.

in the remainder, the court said, “ There is no settled rule of law
to ascertain the damages in such a case without having a jury to
assess them, as they must depend principally upon the value of the
estate during the lives of the defendants, which must be deducted
from four-sixths of the consideration money. Nor ought interest to
be allowed during their lives; for no one during that time will have
aright to turn the plaintiff out of possession, or call upon him for
the mesne profits.” !

Sec. 249. When nothing has passed.

On the other hand, the defect: in the title may be so complete as
to pass nothing from the grantor to the grantee. In such a case, in
Massachusetts, it was said, “The rule for assessing the damages
arising from this breach is very clear. No land passing by the
defendant’s deed to the plaintiff, he has lost no land by the breach
of the covenant; he has lost only the consideration he paid for it.
This he is entitled to recover back, with interest to this time.” ’

1 Guthrie v. Pugsley, 12 Johns. (N.
Y.) 126.

? Bickford v. Page, 2 Mass. 455,
461. For a merely technical breach
of a covenant for seizin, the damages
are merely nominal; Nosler ». Hunt,
18 Iowa, 212; Overhiser v. McCollister,
10 Ind. 41; and this is also the ¢ase
even though there is an entire want of
title in the grantor, so long as the
arate retains possession; Hacker o.

lake, 17 Ind. 97. But if the cove-
nant is wholly broken, and the title
wholly fails, the law restores to the
purchaser the consideration paid with
interest; but in this, as in other cove-
nants usual in deeds for the convey-
ance of rea] estate, if there exist facts
and circumstances which would ren-
der the application of the rule inequi-
table, they are to be taken into con-
sideration by a jury, in estimating the
damages.

Thus, if the covenant of seizin is
broken, and the grantee is enabled to
obtain the seizin by reason of the
covenants of. warranty, he cannot re-
tain the seizin and also recover back
the consideration paid. So, if the
grantor, having no title to premises,
conveys them, and afterward ac-
quired a good title, it immediately

inures to the grantee by way of
estoppel; and he cannot elect to
reject the title, and recover the con-
sideration of money paid, in an action
for a breach of the covenant of seizin,

but is entitled to only nominal dam-
ages where no actual interruption of
the possession has taken place, and to
the damages actually sustained if any
such interruption has occurred. Bax-
ter v. Bradbury, 20 Me. 260; Bickford
v, Page, 2 Mass. 455; Marston 2.

Hobbs, id. 433; Caswell v. Wendell,
4 id. 108; Smith ». Strong, 14 Pick.
(Mass.) 128; Tapley o. Labeaum, 1
Mo. 550; Horsford ». Wright, Kirby
(Conn.), 3; Stubbs »v. Page, 2 Me.

378; Park v. Cheek, 4 Cold. (Tenn.)
20; Bonta v. Miller, 1 Litt. (Ky.) 250;
Blake » Burnham, 29 Vt. 487;
Brandt v, Foster, 5 lowa, 287; Nutting
». Herbert, 835 N. H. 120. This is the
rule, however, only where the grantee:
is not liable to the true owner for
mesne profits. If he is liable there-
for, or if he has been evicted by suit,

the amount for which he is liable to
the real owner, as well as the reason-
able and necessary expenses of the
litigation, are to be recovered in ad-
dition to the purchase-money and in-
terest. Flint », Steadman, 36 Vt.
Covenants FoR TITLE. 287

And it has been stated by Parrsson, J., that where a mortgage is
made with covenant for title, the measure of damages, in case of
breach of the covenant, is the original debt.

Sec. 250. When possession never obtained. When plaintiff is in possession.

*Where the plaintiff has never got into possession of the
land, and in consequence of the want of title never can, the
above is clearly the proper measure of damages. The action on
the covenant then comes in place of an action for money had and
received, on failure of consideration.” But it may be doubted
whether the same rule would hold good, as a matter of law, where
the plaintiff had got into possession, and in fact continued s0 still.
A case may be easily imagined, and indeed constantly occurs, in
which there is such a defect in the title as makes it strictly unsala-
ble, though there is little or no chance of the occupant ever being
turned out. In such a case it would not be fair to allow the whole
purchase-money to be recovered. The vendor has not given a sal-
able title as he engaged; but he has given up his own possessory
title, which was worth something to him, and is worth something to
the purchaser. It is clear that if he were forced to refund the entire
purchase-money, the estate would not revert to him, because, as
against him, the title would still be in his vendee. The covenant, it
will be observed, is a continuing one;° and therefore may be sued
upon from time to time, according as fresh damage arises.* The
fair rule then would be to give the plaintiff such damages as will
compensate him for the defective quality of his title. This was the
course adopted in the case last cited, where the special damage laid

[#179]

210. Money due for rents, profits and part bears to the whole. Partridge ».

improvements, constitute distinct and
separate grounds of action; Pitcher
v. Livingston, 4 Johns. (N. Y.) 1;
Mitchell ». Hazen, 4 Conn. 495; al-
though in New Jersey it has been
held that improvements may be recoy-
ered as a part of the damages. Hulse
v. White, 1 N. J. L. 173. If the title
fails to only a part of the estate the
measure of recovery will be such a
proportion of the whole sum paid and
interest thereon, as the value of that

14Q. B. 395.
? Baber o. Harris, 9 A. & HE. 532.

Hatch, 18 N. H. 494; Hubbard 2.
Norton, 10 Conn. 422; Cornell »o.
Jackson, 3 Cush. (Mass.) 506. Where
the grantor had no title whatever,
and the grantee has remained in un-
disturbed possession until his title has
ripened into a complete title under
the statute, no action can be main-
tained upon the covenants for any-
thing more than nominal damages.
Cowan v. Silliman, 4 Dev. (N. C.)
Law, 46.

* Kingdon 2. Nottle, 4M. & 8. 53.
4 Ante, pp. 140 et seq.
288 Covenant FoR Quist EnsoyMenr.

was, that the lands were thereby of less value to the owner, and that
he was hindered from selling them so advantageously. And so in
an American case, where it appeared that there was an.outstanding
paramount title, which the plaintiff had purchased in, having been
all the time in possession, it was held that he was not entitled to
recover the whole consideration money with interest, but only the
amount paid to perfect the title, with interest from the time of pay-
ment.’ It may be questioned, too, whether interest on the purchase-
money ought in any case to be allowed, where the plaintiff has had

*a beneficial possession. The profits received from the land
[*180] rs

ought to be assumed to be an equivalent for the outlay of his
money.’ It would be different where the land had been taken for
some use which could produce no return until a distant period, which
had not arrived; as, for instance, where the purchase was of build-
ing lots or unreclaimed land. Where the plaintiff has always been
in possession, and his title has since been perfected, without any
expense on his part, nominal damages only can be recovered in the
absence of special loss; as, for instance, where the grantor, having
conveyed without title, subsequently acquired a title, which was held
to inure to the grantee by estoppel.*

Sec. 251. Covenant for quiet enjoyment. Damages on eviction.

A breach of the covenant for quiet enjoyment cannot occur till
the plaintiff has actually been dispossessed or otherwise disturbed.
Cases of this sort present less difficulty than the preceding in one
respect, viz., that the nature of the damages is no longer hypotheti-
cal, but: ascertained. Where the plaintiff, who was lessee of a term,
was evicted, it was held that in actions on the covenant for title, or
quiet enjoyment, measure of damage was the value of the unexpired
part of the term, and the amount of any damages recovered against
the plaintiff by the ejector as mesne profits without interest.‘ And

1 Spring v. Chase, 22 Me. 505; Brandt § ° Cox. Henry, 82 Penn. 18.

». Foster, 5 Iowa, 287; Fawcett 0.
Woods, id. 400. The vendee cannot,
however, swell his damages beyond
the amount of the consideration paid
to the vendor by purchasing the para-
mount title. Cox », Henry, 32 Penn.
St. 18. If the vendor had a life estate,
the value of that estate must be de-
ducted. -Lockwood 2. Sturdevant, 6
Conn. 373.

3 Baxter 0. Bradbury, 20 Me. 260.
And see Nosler ». Hunt, 18 Iowa, 212;
Wilson o. Forbes, 2 Dev.(N.C.) L.30;
Cowan 0, Silliman, 4 id. 46.

4 Williams o. Burrell, 1 C. B. 402.
So where a lessor, being tenunt for life,
with power to grant leases in posses-
sion, granted to a lessee in possession
® reversionary lease, which, on the
lessor’s death, reversioner refused to
Covenant For Quist Enjoyment. 289

where an action is brought against the occupier by a person with
superior title, and the former compromises by paying money, he is
entitled in an action upon the covenant for title to recover the
whole sum so paid, and his costs as between attorney and client,
even though he gives the covenantor no notice of his intention to
compromise.' ‘The only effect of want of notice is to let in the
party, who is called upon for an indemnity, to show that the plaintiff
has no *claim in respect of the alleged loss, or not to the [181]
amount alleged; that he made an improvident bargain ; and

that the defendant might have obtained better terms, if the oppor-
tunity had been given him.’

Sec. 252. Mode of calculating value of land, when it has increased.

Of course the rule stated above as to the damages being the value
of the unexpired part of the term, would apply equally where the
estate was of a nature higher than a chattel interest. If it were
held in fee, the damages would be the entire value of the estate.
And then arises the question, how is this value to be calculated? Is
it to be the value at the time of conveyance, or at the time of evic-
tion? There is little authority upon this pointin England, but it
has formed the subject of frequent discussion in America.’

Land may have obtained an increased value since the time of
the conveyance, either from intrinsic circumstances affecting or from
improvements made upon it by the purchaser. In New York, and
some other States, it was éarly decided that the measure of damages
in case of eviction, when the purchaser derived no benefit from
the property, owing to the defective title, was the sum paid, with
interest from the time of payment, and the cost of ejectment.‘ Kxnz,
C. J., said, “ Upon the sale of lands, the purchaser usually exam-

ratify, the lessee recovered from the
lessor’s executor the premium which
he had paid to the lessor, and the dif-
ference in value between the term pro-
fessed to be granted by the lessor, and
that ultimately granted by the rever-

' Hovey ». Newton, 11 Pick. Mass.)
421; McAlpin ». Woodruff, 11 Ohio St.
120.

? Smith ». Compton, 3 B. & Ad. 407;
Rolph v. Crouch, ante, p. 182.

3 Hovay v. Newton, 11 Pick. (Mass.)

37

sioner, together with the excess of the
costs of the second lease over that of
the void lease. Lock ». Furze, 19 C.B.
(N. 8.) 96; 34 L. J.C. P.201; affirmed
in Ex. Ch. L.R., 10. P. 441; 85 L.
J.C. P. 141.

421; McAlpin v. Woodruff, 11 Ohio
St. 121; Shephard v. Ryers, 15 Johns.
(N. Y.) 497; Donahoe v. Emery, 9
Metc. (Mass.) 63.

4 Staats v, Ten Hyck’s Exzs,, 3 Caines
(N.Y.), 111 (f).
990 CovVENANTS FOR Trrue.

ines the title for himself, and in case of good faith between the
parties (and of such cases only I now speak), the seller. discloses his
proofs and knowledge of the title. The want of title is therefore
usually a case of mutual error, and it would be ruinous and oppress-
ive to make the seller respond for any accidental or extraordinary
rise in ‘the value of the land. Still more burdensome would the
rule seem to be if that rise was owing to the taste, fortune or luxury
of the purchaser. No man could venture to sell an acre of ground to
a wealthy purchaser without the hazard of absolute ruin.” The same
rule was applied in a later decision to the case of improvements
made by the owner, for which it was held that no allowance could
be made.) And a similar doctrine was laid down where the eviction
was from a lease. These decisions seem to .have *been founded
#189] not only on the arguments from expediency which were ad-

vanced, but on the analogy of the old law in the case of a
warranty, upon a writ of warrantia charte. There the rule
also was, that the value should be taken at the time of the
conveyance, and not at the time it was recovered back from
the occupier. The law of New York upon this point is followed
by the States of South Carolina, Virginia, Tennessee and Kentucky.
On the other hand, in Massachusetts and Connecticut, although the
purchase-money and interest held are to be the proper measure of
damages, in an action en the covenant for title where there has been no
eviction, tho courts have decided that where there has been an evic-
tion, the value of the land is to be estimated as it was at that time.’
And so in acase before Knigut Brucn, V. C., in 1850, where a
father had settled an estate upon the marriage of his son, and cove-
nanted with the trustees that he was seized in fee, whereas he was
but tenant for life, in estimating the damages for the breach of cove-
nant the value of the estate was taken at the death of the settler.®

Sec. 253. Increase in natural value.

I conceive that the doctrine laid down by Kent, C. J., is clearly
the equitable rule, where the improvements arise from causes of an

1 Pitcher v. Livingston, 4 Johns. (N. ‘Gore . Brazier, 8 Mass. 528, 543;
Y.)1 Caswell ». Wendell, 4 Mass. 108; Hors.
2 Kinney ». Watts, 14 Wend. (N. Y.) ford o. Wright, Kirby (Conn. ), 3
38. 5 Wace 2, Bickerton, 8D. G. &S.
3 6 Ed. II. 187. 751. See 756; Lockwood o. Sturde-
vant, ante.

.
CovEeNANTS FoR TITLE. 291

entirely collateral nature, such as the growth of a town, the forma-
tion of a railway, or the like. The occupier has had all the benefit
of this increased value, so long as it lasted, without paying any
thing for it. Even supposing that he had sold again after the land
had risen in value, and been forced to pay back to its purchaser
according to that additional value, still he would be only repaying .
money which he had actually received, and would on the same prin-
ciple have a right to call on his vendor to return the sum which he
had received, and no more."

Sec. 254. Outlay of capital.

But the same obvious equity seems by no means to exist when the
additional value arises from the outlay of the plaintiff’s own capital
upon the land. No doubt cases might be put in for which a claim
for damages on this account would be *clearly inadmissible ; [#183]
as, for instance, if a person bought a moor or a mountain
for shooting over, and chose to reclaim the one or build a mansion,
with pleasure grounds, upon the other. But suppose he purchased
building ground at so much per foot in London or Manchester, for
the express object of building, ought he not to be repaid for money
laid out in this way, the benefit of which is seized by a stranger?
In this case, the damage incurred is the direct result of the breach of
contract, and a result which must have been contemplated by the
party entering into the covenant.? Probably this will be found to

1 But in Lock ». Furze, ante, p. 289,
the plaintiff really recovered damages
for a rise in the value of the land.

2 Accordingly, in equity a purchaser
of building land has had allowed to
him the amount expended in erecting
houses; Bunny »v. Hopkinson, 27
Beayv. 565; 29 L. J. Ch. 98. In Rolph
». Crouch, L. R., 3 Ex. 44; 37 L. J.
Ex. 8, the lessee, a florist, recovered
the value of his conservatory. And
tenant’s improvements rendering the
Jand more productive, have been al-
lowed; Ricketts v. Lostetter, 19 Ind.
125; and the costs of paving in front
of building lots; Hale v. City of New
Orleans, 18 La. Ann. 321. In an
action for breach of a covenant for
quiet enjoyment, it wppeared that the
plaintiff had erected buildings upon
the land and converted it into pleas-

ure ground, and he claimed damages
for the expense he had incurred in
so doing. Danas, C. J., said: “I
very much doubt whether in any case
a plaintiff can recover for the improve-
ments and buildings he may choose to
make and erect upon the lands.” The
point, however, was not decided.
Lewis », Campbell, 8 Taunt. 727.

In Maine, it is held that the proper
measure of damages in an action upon
a covenant of warranty, is the value of
the land at the time of the eviction, and,
if the grantee is evicted by judgment
of law, in addition thereto, the ex-
penses incurred in defending the suit
including counsel fees; Swett v. Pat-
rick, 12 Me. 9; Hardy ». Nelson, 27
id. 525; and as to the first proposi-
tion, see, also, to the same effect Guer-
ard v. Rivers, 1 Bay (8. C.), 265;
292 Covenants For TITLE.

be the true ground of distinction, and that every case must be
decided upon its own merits, according as the improvements were
the fair consequence of the contract of sale or not.

Sec. 255. Damages in case of eviction from part of the land.

Where there has been an eviction of part of the land sold, the
mode in which damages are to be assessed will vary according as the.
failure of title takes place as to an undivided share of the land,
or to an ascertained portion of it. In the former case, the vendor
must refund an aliquot part of the purchase-money, according to
the fractional part lost by the purchaser. In the latter case, evi-
dence may be given of the quality of the specific piece from
which the plaintiff has been ejected, and the law will apportion the

damages to the measure of value between the land lost and the

Wyman v. Ballard, 12 Mass. 304. But
the general rule is that the recovery
is limited to the amount of purchase-
money, with interest, from the time
of sale; Phillips v. Reichert, 17 Ind.
120; Foster 0. Thompson, 41 N. H.
373; Hanson 0. Buckner, 4 Dana (Ky.),
251; Elliott » Thompson, 4 Humph.
(Tenn.) 99; Morris 7. Rowan, 2 Harr.
(N. J.) 304; Logan v. Moulder, 1 Ark.

313; Cox v. Strode, 2 Bibb (Ky.), 273;°

Durbin 2 Garrard, 5 Monr. (Ky.)
317; Gridley ». Tucker, 1 Freem.
(Miss.) Ch. 209; Harland 2. Eastland, 1
Hard. (Ky.) 590; McKinny v. Watts,
3 A. K. Marsh. (Ky.) 268; Marshall
». McConnell, 1 Litt. (Ky.) 419;
Humphreys 2. McClenachan, 1 Munf.
(Va.) 493; Threlkeld ». Fitzhugh, 2
Leigh (Va.), 451; Bennett v. Jenkins,
13 Johns. (N. Y.) 50; Bender v, From-
berger, 4 Dall. (Penn.) 441; Coxe o.
Strode, 2 Bibb (Ky.), 273; Lowther o.
Commonwealth, 1 H. & M. (Va.) 202;
Wallace v. Talbot, 1 McCord (S, C.,)
466; Stout o. Jackson, 2 Rand. (Va.)
182; Grist 0. Hodges, 3 Dev. (N. C.)
Law, 198; Lloyd v. Quimby, 5 Ohio
St. 262; Wade ». Comstock, 11 id.
71; McClure v. Gamble, 27 Penn, St.
288; Tong ». Matthews, 23 Mo. 437;
Reese ». McQuilkin, 7 Ind. 450;
Swafford ». Whipple, 3 Greene, 261;
Pearson ». Davis, 1 McMull. (8. C.)
37; Earl ». Middleton, Cheves (S. C.),
127; and the costs and damages which
he has been compelled to pay, to-
getber with counsel fees and interest

on the whole sum. Keeler ». Wood,
30 Vt. 242; Rowe v. Heath, 23 Tex.
614; Smith o. Sprague, 40 Vt. 43;
Robertson ». Lemon, 2 Bush (Ky.),
801 ; contra in Louisiana; Sarpy v. New
Orleans, 14 La. Ann. 311, and South
Carolina, Jeter ». Glenn, 9 Rich. (S.
C.) 874,

If the failure of title extends to.
only @ part of the land, the measure
of damages is the injury sustained by
the loss of that portion of the land,
and not at the rate per acre paid for
the whole. King v. Pyle, 88. & R.
(Penn.) 166; Dimmick ». Lockwood,
10 Wend. (N. Y.) 142; Raines o.
Calloway, 27 Tex. 678; Bryan ».
Smallwood, 4 H. & M. (Md.) 488.
If, however, a specific price was paid
for the several parcels, then only , the
specific price paid for the parcel lost
can be recovered. Dimmock v. Lock-
wood, ante. In Vermont, where the
grantor conveyed a tract of land of
which he owned only an equal un-
divided half, it was held that the
recovery should be for one-half the
consideration paid. Downer ». Smith,
38 Vt. 464. It there is an outstand-
ing mortgage upon the land, which
the grantee has paid, then the meas-
ure of his recovery is the amount paid
to remove the incumbrance; Brady wv.
Spurck, 27 Ill. 478; and if he has not
paid off the mortgage, then only nom-
inal damages can be recovered.
Brady ». Spurck, ante; Randell o.
Mallett, 14 Me. 51.
CovENANT FoR Quiet ENJoyMENT. 293

land preserved.!’ Where the land is only held on lease, and there is
a partial eviction by title paramount, the rent will be apportioned.’
The damages *then ought, according to the principle laid
down before,’ to be the value of the part evicted for the
unexpired portion of the term; that is the difference between the
rent which would have been paid, and the profits which would
have been made. Where, however, the eviction is by the lessor
himself, or any one claiming through him, there is no apportion-
ment, but a complete suspension of all subsequently accruing rent.‘
Would this make any difference in the claim for damage?

[#184]

Sec. 256. Deed is conclusive as to amount of purchase-money.

Where the damages are to be calculated upon the basis of the
purchase-money, its amount, if stated in the deed of conveyance,
cannot be contradicted by parol evidence. ‘‘ Where any considera-
tion is mentioned, if it is not said also, ‘and for other considera-
tions,’ you cannot enter into any proof of any other; the reason is
because it would be contrary to the deed ; for when the deed says it
is in consideration of such a particular thing, that imports the whole
consideration, and is negative to any other.”° On the same princi-
ple, evidence cannot be given that it was really smaller than is
stated, or that it was never paid at all.“ One case may seem contra-
dictory, but is really not so. A deed containing a general release of
all debts recited that the releasee had previously agreed to pay to
the releasor the sum of 40/., and that “in consideration of the said
sum of 402. being now so paid as hereinbefore is mentioned,” and
also in consideration of certain other payments to him and J. &., “the
receipts of which said several sums they did hereby acknowledge,”

1 Per Kent, C. J., Morris o. Phelps,
5 Johns. (N. Y.) 49, 55; Brandt ».
Foster, 5 Clarke (Iowa), 287; Partridge
». Hatch, 18 N. H. 494; Ela o. Card,
2 N. H. 175; Cornell v. Jackson, 3
_ Cush. (Mass.) 506; Hubbard o. Nor-
ton, 10 Conn. 422. In one case, for
the purpose of reducing the damages
toa nominal sum, parol evidence was
admitted to show that nothing was in
fact’ paid for the specific piece, and
that it was included in the conveyance
by mistake. Nutting ». Herbert, 35
N. H. 120.
*Smith o. Malings, Cro. Jac. 160;

Stevenson ». Lambard, 2 East, 575;
Boodle ». Cambell, 7 M. & Gr. 386.

3 Williams ». Burrell, 1 C. B. 402,
ante, p. 289. ,

4 Morrison », Chadwick, 7 C. B. 266.

5 Per Lord HarpwickE, Peacock 2.
Monk, 1 Ves. Sen. 128.

6 Rowntree v. Jacob, 2 Taunt. 141;
Baker v. Dewey, 1 B. & C. 704. But
in equity a recital that purchase-
money has been paid may be shown to
be not true; Wilson v. Keating, 4 De
Gex & J. 588; 27 Beav. 121; 28 L. J.
Ch. 895.
294 Covenant AGAInsT INCUMBRANCES.

he, the plaintiff, releases the defendant ‘from all demands, etc.; the
action was for the 40/. which it was proved had never been paid.
It was held that the words of the deed formed no estoppel, as the
general words of the release were qualified by the recital, and that
the sentence ought to be read, “In consideration of the sum of 40/.
being now so agreed to be paid as aforesaid ;” while the subsequent
words of receipt referred more properly *to the payments

[#185] vo
which were to be made to the releasor and J. 8.3

Sec. 257. Effect of covenant for quiet enjoyment.

It must be remembered that a covenant for quiet enjoyment is
only a covenant to secure title and possession. It does not guarantee
the tenant that he may lawfully use the land for any purpose. And
even though there is a covenant restricting him from using the land
for certain specified purposes, this does not amount to a guarantee
that he may use it forall other purposes. Defendant became assignee
of asub-lease which contained a covenant for quiet enjoyment by
the sub-lessor, and a covenant by the sub-lessee that he would not
use the premises for certain defined. purposes, of which the trade in
beer was not one. He was ignorant that the original lease contained
a covenant against selling beer. The original lessor obtained an
injunction against his continuing the beer trade. It was held that
this was no breach of any covenant, express or implied, between the
sub-lessor and sub-lessee. The injunction did not interfere with his
title or possession, but only with a particular mode of enjoying the
land, in which he had never been guaranteed.’

Sec. 258. Covenant for further assurance.

In the case of a covenant for further assurance the whole value
cannot be recovered till the ultimate damage is sustained. And if
no damage is suffered in the life-time of the ancestor, the action
must be brought by the heir and not by the executor.’

Sec. 259. Covenant against incumbrances.

The last species of covenant we shall notice under this head is the
covenant against incumbrances. There seems to be no difference in
principle between a covenant against incumbrances and a covenant

'Lampon v. Corke, 5 B. & A. ° Dennett v. Atherton, L, R.
606, B. 316, prea a

®’ King o, Jones, 5 Taunt. 418, 428.
CovENANT against IwcUMBRANCES. 295

to pay them off. If so, the point is decided in England. The action
was by the trustees of the defendant’s wife on a covenant to pay off
incumbrances to the amount of 19,0002. They had paid nothing
themselves, and no special damage was laid or proved; it was held
that the full amount of the incumbrances might be recovered. Lord
TenterDEN, CO. J., said, “If the plaintiffs are only to recover a
shilling damages, the covenant becomes of no value.” And Parrz-
SON, J., said, ‘‘ At law the trustees were entitled to have *the
estate unincumbered; how could that be enforced, unless
they could recover the whole amount of the incumbrances in an
action on the covenant?”? The rule in this country is different,
and it is held that the damages are merely nominal, unless the plain-
tiff has paid something to their discharge.” But that when he has
extinguished the incumbrances he is entitled to an indemnity.*

[*186]

Sec. 260, Principle of damages for breach.

. I conceive that the rule laid down by the court of king’s bench is
The damages are not, as Mr. Sedgwick seems to
suppose, given in respect of a future contingent loss. They are the
proper compensation for an actual and existing loss. The question
is, how much is the value of the estate diminished at the moment
by the existence of the incumbrances? If interest has to be paid
upon them, there is a clear loss of annual profit; but suppose the
interest is provided for elsewhere, and the estate is merely an ulti-
mate security, still the owner is damnified to the full amount of the

the true one.

' Lethbridge v. Mytton, 2 B, & Ad.
7172.

? Prescott v. Trueman, 4 Mass. 627;
Grant v. Tallman, 20N. Y. 191. But
where the representation that the
property was incumbered was made
fraudulently, the amount of the mort-
gage was recovered; Haight v. Hayt,
19.N. Y. 464; Richardson v. Dorr, 5
Vt. 9; Harlow v. Thomas, 15 Pick.
(Mass.) 66; Pillsbury o. Mitchell, 5
Wis. 17; he cannot recover more than
nominal damages until he has suffered
an actual loss; Andrews v. Davison,
17. N. H. 418; but he is entitled to
nominal damages if the incumbrance
existed at the time of the conveyance
to him, although the grantor removed
it before an action for a breach of the
covenant was brought; Smith o. Jefts,
44 N. H. 482; but he is entitled to re-

cover whatever he has fairly paid to
remove the incumbrance; Harlow v.
Thomas, ante; Willson v. Willson, 25
N. H. 229; Hubbard »v. Norton,
10 Conn. 422; Comings ». Little, 24
Pick. (Mass.) 266; provided it does
not exceed the amount of considera-
tion paid for the land; Graut ». Tall-
man, 20 N. Y. 191; Foote o. Burnet,
10 Ohio, 317. If theincumbrance con-
sists of an unexpired lease for a term,
the measure of recovery is the fair
rental value of the premises for the
balance of the term; Porter ». Brad-
ley, 7 R. I. 538.

3 Delavergne v. Norris, 7 Johns. (N.
Y.) 358; Hall ». Dean, 18 id. 105.
Cases where the grantee has beer
actually evicted in consequence of the’
breach of covenant, of course come
under different rules.
296 Imprrep CovEnants.

incumbrances, if he should wish to sell the estate, to mortgage it, to
settle it, or to charge portions upon it. True, he may not want to
do any of these things at present, but as soon as he does want to do
them, he will undoubtedly fail. It is no satisfaction to a man who
has to break off a match, for instance, because he cannot effect a
settlement, to be told that he may now bring an action, and obtain
substantial damages. Nor is it any answer to say that he may him-
self pay off the incumbrances, and then sue; because very likely he
may have no ready money, and be unable to borrow any, on account
of the incumbered condition of his estate; in short, the American
doctrine converts a covenant to pay off incumbrances into a cove-
nant of indemnity against incumbrances, which it is aoprehended is
a very different thing.

Sec. 261. Contingent incumbrance.

Where, however, an action is brought on a covenant against
*incumbrances, and the incumbrance is not necessary, but
only a contingent one, which may never occur, the damages
will be nominal.

[*187]

Sec. 262. Covenant to renew.

And where both present and contingent -.oss are negatived, the
damages will obviously be only nominal ; for instance, when at the
time of trial the incumbrance has ceased to exist, and its removal
has caused no expense to the plaintiff.’

The amount of damage recoverable for a breach of covenant to
renew was much discussed in a case in Ireland.’ The covenant was
treated as not involving a contract that the renewal would confer a
good title,“ and it followed as a necessary consequence that the
value of the renewal, for withholding which damages were to be
assessed, depended partly on the value of the land and partly on the
title of the lessor. It was considered that if the lessor had no title
or estate out of which a valid renewal could have been carved, the
lessee lost nothing by the non-renewal, for under such circumstances
a renewal would have been valueless.*

‘Vane v. Lord Barnard, Gilb. Eq. 5 Strong v. Kean, 18 Ir. L. R. 98, Ex.
Rep. 7. Ch.
? Herrick »v, Moore, 19 Me. 313; 4Id., per Preort, C. B. ,146.
Smith ». Jefts, 44 N. H. 482. 5 Strong v. Kean, 13 Ir. L. R. 93, Ex.
Ch. ; and see per Crompton, J., 128.
Impuizp CovENANTs. 297

Sec. 263. Fitness for habitation.

Where a house is let furnished, for immediate occupation, there
is an implied covenant that the house is reasonably fit for habitation,
so that the intending tenant can safely enter into his tenancy on the
day on which the tenancy begins. Where this condition is not com-
plied with, the tenant is at liberty to rescind the contract at once.
But if he does not choose to do so, he would be entitled to recover
damages for the inconvenience and loss he was put to; for instance,
the expense of remedying the defect complained of, the cost of
removing to a hotel and living there while the house was being
made habitable, and the like! And so where persons are admitted
into a building on payment, there is an implied warranty that the
building is safe.’

1 Wilson o. Finch Hatton, 2 Ex. D. ? Francis v. Cockrell, L. R., 5 Q. B.
886; 46 L. J. Ex. 489. 184, 501; 39 L. J.Q. B. 118, 291.

38
298 Contracts ror Work.

[*188] *CHAPTER XII.

CONTRACTS FOR WORK.
Sec. 264. Extras. Deviations,
265. Claim for payment before entire work has been completed.
266. Where it is not in accordance with the contract.
267. When plaintiff may sue on quantum meruitt.
268. Damages when defendant has prevented performance of contract.
269. When plaintiff has not completed time of service.
270. Service improperly determined.
271. Difference between agreement to retain in service, and agreement
to pay for service.
272. Intention of parties.
273. Effect of word ‘‘ agreed.”
274. When service is a mode for paying a debt.
275. Where covenants to serve and pay are independent.
276. Agreement to supply work not always implied.
277. Remedy for improper dismissal.
278. Contract does not subsist for any collateral purpose.
279. Measure of damages. ‘
280. Doctrine of constructive service.
281. Menial servant.
282. Actions for dismissing without due notice.
283, Salary now apportionable by statute.

Sec. 264, Extras. Deviations.

Next to contracts of sale, probably the most common species of
contract is that by which the labor of others is purchased for a
limited time. Agreements of this sort are entered into with a view
to the performance of a particular work, or the procuring of a cer-
tain amount of service, and the remuneration to the other party
resolves itself into the price of the work, or his own wages or
salary.

This case will be simple enough where the work has been done
according to the contract. The measure of damages will be the
contract price, if any, or the value of the thing, if no price has
been fixed. Where the work consists partly of work done under a
special contract, and partly of extras added subsequently, the plain-
tiff may recover for the latter at once, on a quantum meruit, even
though the time for paying for the work under the agreement has
Contracts For Work.

299

not arrived. And a quantum meruit is the only way in which such
extras can be sued for, unless there has been a special contract to.

meet them.

‘Robson v. Godfrey, 1 Stark. 220.
See as to the effect of special con-
tracts, Ranger v. G. W. Ry. Co., 5
H. L. Ca. 72; Russell 0. Sa da Ban-
deira, 18 C. B. (N. 8.) 149; 82L. J.
C. P. 68; Stadhard ». Lee, 3 B. & S.
364; 82 L. J. Q. B. 75.

In order to entitle a person who has
contracted to perform certain work, to
recover extra compensation therefor,
the extra services for which the claim
is made must be such as he was under
no obligation to perform under the
contract, for, where a person is bound
by his contract to do a certain act,
or where his duty is fixed either by
contract or by law, a _ promise
to pay an increased price for doing
that which he is already bound to do,
is a mere nudum pactum, and void;
Sweany ». Hunter, 1 Murph. (N. C.)
181. Where, however, the labor
claimed to be extra is such as the
party is not bound to do, he may re-
cover therefor, provided it was done
at the request of the party sought to
be charged therewith, either express
or implied. Therefore, in order to re-
cover for extra labor, two things must
be established: Ist. That the party
was not bound, by the contract, to do
the work for which the recovery is
claimed ; and 2d, that he did it at the
express or implied request of the
party sought to be charged therewith;
‘Wood’s Master and Servant, 171 et seq.

Of course, a request to perform ex-
tra work may be implied. Thus,
where the original plan for a piece of
work was abandoned and a new one
adopted, which increased the expense
to such a degree that the original
plan could not be followed as a guide,
even to the extent of the expense es-
timated on such original plan. The
contractor, in making his estimates,
acted under the directions and with
the knowledge of his employers. It
was held that it was not necessary for
the contractor, in order to recover, to
show what work and materials were
embraced in the original contract, and
what was extra work.

A contract was made under a city.

In such an action the original contract must be put in

charter for the performance of a cer-
tain piece of work. Afterward the
city agreed with B, an assignee of the
contract, at a greater price than could
be incurred under the charter. A
plan substituted for the original one
also involved an expenditure three or
four times greater than the city was
authorized to make. The new plan-
was, besides, not let to the lowest
bidder after notice, as required by the
city charter and an act of legislature
passed in reference thereto. After the
substitution of the new plan, and in
view of the greatly increased expense
occasioned by its adoption, acts of the
legislature empowering the city gov-
ernment to increase the amount of
city bonds which they were empowered
to issue for the work, to any sum
that might be necessary, were passed.
Held, that if the city by some author-
ized action had procured the passage
of these acts of legislature, or subse-
quently acquiesced therein by ratifying
the contract, the city was bound by
the terms of such new contract.

The plaintiff, while engaged in
building a harbor, constructed pro-
tection work. The work was built
under the direction of the city en-
gineer and harbor committee, whose
business it was to oversee and direct
the best execution of the contract,
and was necessary to the economical
building of the harbor. Held, that
the city should pay the reasonable cost
of the “protection work.” Hasbrouck
». Milwaukee, 21 Wis. 217.

But in a case where the contract
and specifications for paving an avenue
did not provide for taking up the
gutter stones and paving in their
places, but required the contractor to
re-adjust the gutter stones wherever
necessary, without charge; and in vio-
lation ‘of this, he removed the gutter
stones and substituted the pavement
with the assent of the water purveyor,
at the request of some of the owners,
it was held that there was no author-
ity for this, and that it was outside of
the contract. Matter of Wood, 51
Barb. (N. Y.) 275.
300 Contracts For Work.

stamped, that it may be seen what work was extra... Where there
thas been a contract for a specific work at a settled price, and devia-
tions have been subsequently agreed on, the employer is not liable
[*189] beyond the amount stipulated, unless he was *informed that

the alterations would create additional expense, or unless he
must necessarily have known it.” And where the plaintiff has con-
tracted to supply a particular article of certain materials at a stated
price, he cannot, by making it of superior materials, obtain a right
to an increased price; nor can he, when it has once been delivered
to the defendant, force him to return it on his refusal to pay such a
price.*

Where the plaintiff was employed to “construct a machine, by
means of which he was to experiment on the best mode of carrying
out defendant’s patent, it was held that m an action for work, labor,
and materials, he might recover not only the cost of the machine
and his own labor, but also for his scientific skill, and the use of
other machines necessarily kept idle while the experiments were
going on."

Interest will be recoverable under 3 & 4 W. IV, chap. 42,° but
not otherwise.

On the other hand there may be a failure to carry out the contract,
either through the plaintiffs default, or the refusal of the defendant
to allow him to proceed in it.

Sec, 265. Claim for payment before entire work has been completed.

Where the contract is to do a specific piece of work, as for in-
stance, to build a house for an entire sum, there can be no claim for
payment of any part before the whole is finished.’ But where the
consideration is apportionable, as when a shipwright agreed to put a
ship into thorough repair, and no entire sum has been agreed on, it
has been held that the person who is to do the work may sue for
payment as the benefit accrues, and recover pro tanto.’ A Sortiort
where the consideration is apportioned by the agreement, and a

1 Buxton ». Cornish, 12 M.°& W. 6 Rees 0, Lines, 8 C. & P. 126; Ap-'
426; but see Edie o. Kingsford, 14 C. ee Myers, L. R., 2 C. P. 651; 36
B. 759; 23 L. J. CO. P. 123. J.C. P. 331, in Ex. Ch.; ; Anglo-Eg.

2 Lovelock v King, 1M. & Rob.60. Nav. Co. 2. Rennie, L. R., 10 C. P. 271,

3 Wilmot ». Smith, 3C. & P. 453. 571; 44 L. J. C. P. 180, 292, n.

4 Grafton 0. ‘Armitage, 2 C. B. 336; 7 Roberts % Havelock, 3B. & Ad.
Bird v. M’Gaheg, 2 C. &K. 707. 404

5 See ante, pp. 227, 230.
Contracts FoR Work. 301

price affixed to each item, as on a contract to deliver straw at the
rate of three loads in a fortnight up to the 24th June, at the sum of
33s. per load.’ It may be observed that the contract with an attorney
is an entire one, to carry the suit to its termination, and he cannot
recover costs for part of a *suit which he has abandoned,
unless he has given his client reasonable notice,’ or can show
some satisfactory reason to dispense with such notice ;’ but if his
client refuses to supply him with money, he may, after notice, dis-
continue the proceedings, and sue for the work done.‘

[*190]

Sec. 266. Where it is not in accordance with the contract.

No action can be maintained upon a contract to do a certain thing
at a stated price, where the plaintiff has himself failed to perform
his part of the agreement. Nor can he recover even for the partial
benefit the defendant has received, when the labor was expended
upon the defendant’s own property, so as to be inseparable from it;,
as, for instance, where the contract was to make three chandeliers
complete for 10/.; or to cure a flock of sheep, the agreement being
that the plaintiff was to be paid nothing unless he cured all, which
he did not do.* Here the retention of the benefit accruing from the
plaintiff's labor clearly raises no new implied contract to pay for it,
and the original contract has been broken.

Sec, 267. When plaintiff may sue on quantum meruit.

Where, however, the original agreement has not been performed,
but the plaintiff has done something which the defendant has ac-
cepted and retained, dealing with it in such a manner as to raise an
implied contract to pay for it, the plaintiff may recover the value of
the partial benefit, not upon the original contract, but upon a guan-
tum meruit. In such a case he is only entitled to recover the value

1 Withers v. Reynolds, 2 B. & Ad. proceed in the matter at once, Lord

882.

2 Harris v. Osbourn, 2 C. & M. 629.

3 Nicholls v. Wilson, 11 M. & W.
106.

4Vansandau v. Browne, 9 Bingh.
402. But in acase in the privy coun-
cil, where a decree had been made in
favor of the appellant with costs, and
his solicitor declined to proceed with
the taxation, apparently for want of
funds, the committee directed him to

Westpury said: “It is the duty of a
solicitor, who has once undertaken a
cause, to carry it to a conclusion, and
he cannot refuse to do that duty by
reason of the client not having com-
plied with any application that may
have been made to him.” Jan. 26,
1870. Anon., 4 Bengal, L. R.P. C. 29.

5 Sinclair v. Bowles, 9 B. & C. 92;
Bates v. Hudson, 6 D. & R. 8; Munro
v. Butt, 8 E. & B. 738.
802

*

Contracts FoR WorRK.

of the work done, and the materials supplied ;! and the inferiority
of the work may be given in evidence in reduction of damages.’
No remuneration at all can be recovered, when no benefit has been

1 Grounsell v. Lamb, 1 M. & W. 352;
Lucas v, Godwin, 8 Bingh. N. C. 737;
Chapel 0. Hickes, 2 C. & M. 214.

In this country the rule generally
adopted in reference to the defective
performance of a contract for the per-
formance of specific work, as to build
a house, a fence, wall, ship, etc.,
etc., is that, if the work done is of sub-
stantial benefit to the other party, the
party performing it may recover there-
for so much as the house, etc., in the
condition in which it is, is worth less,
by reason of the failure of the plain-
tiff to perform his contract. Crook-
shank v. Mallory, 2 Greene (Iowa),
257; Newman v. McGregor, 5 Ohio,
351; Hayward v. Leonard, 7 Pick.
(Mass.) 181; Linningdale v. Living-
‘ston, 10 Johns. (N. Y.) 36. Thus,
in Hayward ». Leonard, ante, it was
held, that where a special contract
is made to build a house for another
upon his land, which is built, but not
according to the contract, and the
person for whom it is built, from time
to time objects to parts of the work
and materials, but does not order the
builder to desist, but acquiescing in
his proceeding with the work, and
finally refusing to accept the house
when done, if the work is beneficial
to the person for whom it was erected,
he is liable forthe materials and labor
to the extent of the benefit, not on the
contract, but on the general counts in
assumpsit. In Harris v. Bernard, 4
E. D. Smith (N. Y. ©. P.), 195, the
plaintiff employed the defendant to
manufacture gold jewelry for him,
from gold furnished the defendant, by
him therefor. The defendant fraud-
ulently made and delivered to the
plaintiff a quantity of plated articles.
The plaintiff did not return these ar-
ticles, and in action for damages for
the fraud, it was held that the value
of the plated articles must be deducted
from the judgment, because to that
extent the plaintiff had been benefited.
In Bassett ». Sanborn, 9 Cush. (Mass.)

? Basten v. Butter, 7 Hast, 479;
547; and see ante, p. 122.

58, A agreed under seal to build a
house for B, but the work not being
completed at the stipulated time, B
directed A to discontinue, and the
contract was not completed. It was
held, nevertheless, that A might re-
cover upon the common counts for
work and labor, etc., deducting all
damages to B from the failure of A to
comply with the contract. And it was
also held that the fact that payment
was to have been in part by real estate,
did not prevent A from recovering on
the common counts, especially as the
true value of the land was not over es-
timated in the original contract, and
B had refused to convey it in part
payment for the work actually per-
formed.

By the original ‘contract, A was to
be paid in thirty days after the com-
pletion of the work. It was held that
he might recover interest in such ac-
tion after thirty days, from the time
he might have completed it, but for
the interference of B.

In another Massachusetts case A
contracted under seal, to build a dam,
according to the specifications and in
the manner set forth in the contract,
the last installment of the price to be
paid when the dam should be com-
pleted according to the contract. And
acting in good faith, and with an
honest intention of fulfilling the con-
tract, he built a dam, though not ac-
cording to the contract. Held, that
he might maintain an action for work
done and materials furnished, and that
the jury should deduct from the con-
tract price, so muchas the dam built
was worth less than the dam contracted
for. Gleason »v. Smith, 9 Cush.
(Mass. ) 484,

The defects in performance may be
waived, and generally, when the
thing to be performed is accepted
without objection, this amounts to a
waiver, but this is only true when the
defects are discernible or patent, and
does not apply to hidden or secret de-

Cousins », Paddon, 2 C. M. & R.
Contracts FoR Work.

3803

received. This may happen, either where work which might

*be useful has been performed unskillfully, or where work
which is useless for the object in view has been performed

even skillfully.'

[*191]

Where a party contracts to do work at a certain price, and his
employer afterward does part of it, or furnishes part of the mate-
rials which the former had undertaken to supply, this is matter of
reduction of damages, not of set-off.’

There is nothing peculiar in an

fects. As to whether or not there
has been a waiver is a question of fact
to be determined from the circum-
stances of each case. Dayton v. Dean,
23 Conn. 99. In Bristol ». Tracy, 21
Barb. (N. Y.) 236, in a written con-
tract for putting up furnaces, the
plaintiff agreed to put in a cold air
register face, which he omitted to do,
but the furnace was used three
months, and no complaint made of
the omission, and no proof of dam-
ages to the defendant arising from
the omission, or that she ever re-
quested to have such register face
supplied, it was held, that this was a
waiver of that part of the contract, on
the part of the defendant.

The parties may of course agree
upon the measure of damages in case
of a failure to perform, and where
they do so agree, their agreement is
conclusive. Thus, in Street 0. Chap-
man, 29 Ind. 142, a manufacturer
contracted with a purchaser that if a
certain engine, to be furnished, should
not be of sufficient power to run four
burr mill stones, he would remove it
and pay the purchaser $1,000. The
court held that the measure of dam-
ages for a failure was the cost of re-
moval and the $1,000 agreed upon.
See, also, Davis v. Talcott, 14 Barb.
(N. Y.) 611. Where the party con-
tracting to do the work knows the
purpose for which it is wanted, and
in view of such knowledge contracts
to do it in a certain way, or within a
certain time, he is liable for all the

1 Hill o. Featherstonhaugh, 7 Bingh.
569; Huntley o. Bulwer, 6 Bingh. N.
C. 111.

attorney's claim to recover costs,

natural and probable consequences of
his failure to perform. Thus, where
A agreed to erect a warehouse for B
in which to store broom corn which
B was engaged in raising, but failed
to complete it within the time agreed
upon, in consequence of which B was
delayed in cutting and storing the
corn in proper season, and as a result
of such delay a large portion of it was
injured by the weather, it was held
that A was liable for the actual dam-
age done to the corn, but not for the
loss of profits B would probably have
made. Haven v, Wakefield, 39 Ill.
509.

In those cases where the plaintiff,
without having fully performed his
contract, is entitled to recover for the
actual benefit which the defendant
has received from his labor, the
method of estimating such benefit is,
first, to deduct from the contract
price such sum as will enable the other
party to get the contract completed
according to its terms; or, where
that is impossible or unreasonable,
such sum as will fully compensate
him for the imperfection in the work
and the insufficiency of materials; and
second, to deduct also from the con-
tract price whatever additional dam-
ages the breach of the contract has
occasioned him. The remainder will
be the amount which the party, who
has failed in a strict compliance with
the contract, will be entitled to re-
cover. Kelly v. Bradford, 33 Vt. 35.

*Turner v. Diaper, 2 M
Newton ». Forster, 12 M, &

. & G. 24h;
W. 772.
804 Contracts oF H1rina.

except the statutory regulations as to delivering a signed bill, and
getting them taxed.!

Sec. 268. Damages when defendant has prevented performance of contract.

Where the non-performance of the contract arises, not from any
failure on the part of the plaintiff, but from some act of the defend-
ant, who absolutely refuses to perform, or renders himself incapable
of performing his share of the contract, the plaintiff may rescind
the contract, and sue at once, on a guantum meruit, for what he has
done. This wag decided in a case where the plaintiff had been
engaged by the defendant to write a treatise on Costume and
Ancient Armour, to be published in the Juvenile Library. When
a certain progress had been made in the work, the defendants aban-
doned the publication for which it was intended. The declaration
contained a count for work and labor, upon which it was held that
the plaintiff might recover on the principle stated above.’

Sec. 269. When plaintiff has not completed time of service.

As to contracts of hiring.

No difficulty can arise, when the action is for wages earned by
virtue of a contract which has been completely performed.

When the contract is to serve for a specitied time for a specified
sum, the plaintiff cannot recover that sum upon the contract unless
he has performed it; nor upon a quantum meruit, unless the non-
perfcrmance arises from the defendant’s act;* therefore, where a

16 &7 Vict, c. 73, 8s. 87. As to
evidence in reduction of damages, see
ante, p. 158.

*Planché vo. Colburn, 8 Bingh. 14.
See Prickett v. Badger, 1 C. B. (N. 8.)
296; 26 L. J. ©. P. 33; Inchbald o.
Western Neilgherry Coffee Co., 17 0,
B. (N. 8.) 783; 34 L. J. C. P. 15;
Phil. etc,, R. R. Co. v. Howard, 13
How. (U. 8.) 307; Moore v0. Howard,
18 La. Ann. 635; Haggin 2. Price, 8
Dana (Ky.), 48.

5 Where a servant, who is employed

for aterm, under an entire contract,

abandons the service before the term
is completed, in the absence of a legal
and justifiable cause for so doing, the
_burden of establishing which is upon
him, he can recover nothing for the
services already performed, Such

contracts being entire, full perform-
ance is a condition precedent toa right
of recovery. Steamboat Co. v. Wil-
kins, 8 Vt. 54; Sherman v. Transport-
ation Co., 31 id. 162; Mullen 2, Gil-
kinson, 19 id. 508; Cahill », Patterson,
80 id. 592; Ripley » Chipman, 13 id.
268; Winn »v. Southgate, 17 id. 355;
Patterson », Gage, 23 id.558; Fenton
v,Clark, 11 id. 557; Hubbard 2, Belden,
27 id. 645; Patrick 2. Putnam, id.759;
Forsyth v. Hastings, id. 646; Patnote
2. Sanders, 41 id. 66; Mack 2. Bragg,
80 id. 571; Stark v. Parker, 2 Pick.
Mass.) 267; Hennessey ». Farrell, 4

ush. (Mass.) 267; Chandler v, Thurs-
ton, 10 Pick. (Mass.) 205; Olmstend »,
Beale, 19 id.528; Davis », Maxwell, 12
Mete., cee 286; Henson ». Hamp-
ton, 32 Mo.408; Aaron v. Moore, 34 id.
Contracts or Hrrrna.

305

seaman was hired for a certain sum, “provided he proceeds, con-

tinues, and does his duty on board *for the voyage,” and he
died before its arrival, it was held that no wages could be

79; Schnerr v.Lemp, 19 id. 40; Cox.
Adams, 1N.& Me. (8. C.) 284; Byrd
»v. Boyd, 4 McCord (8S. C.), 246; Mc-
Clure ». Pyatt, id. 26; Shaw o. Turn-
pike Co., 2 Penn. 454; Libhart 2.
Wood, 1 W.&S.(Penn.) 265; Babbitt
». Riddell, 1 Grant’s Cas. (Penn.) 161;
Larkin ». Buck, 11 Ohio St. 561; Dover
2. Plemmons, 10 Ired. (N. C.) 23; Ho-
gan v, Titlow, 14 Cal. 255; Hutchinson
v. Wetmore, 2 id. 310; Angle c. Hanna,
22 Ill. 429; Swanzey v. Moore, id. 63;
Eldridge ». Rowe, 7 id. 91; Hansell ».
Erickson, 28 id. 257; Jewell v. Thomp-
son,2 Litt.(Ky.) 52; Wright». Wright,
1 id. 179; Morford », Ambrose, 3 J.J.
Marsh.(Ky.) 688; Statew. Beard, 1 Ind.
460; DeCamp v. Stevens, 4 Blackf.
(Ind.) 24; Rounds ». Baxter, 4 Me.454;
Miller 2, Goddard, 34 id. 102; Evans
v. Bennett, 7 Wis. 404; Green »v. Gil-
bert, 21 id. 395; Henderson 2», Stiles,
14 Ga. 185; Givhan v. Dailey, 4 Ala.
336; Whitley ». Murray, 34 id. 155;
Pettigrew v. Bishop, 3 id. 440; Marsh
v. Rulesson, 1 Wend. 514; Jennings o.
Camp, 13 Johns. (N. Y.) 94; Thorpe 2.
White, id. 53; Lantry 7. Parks, 8 Cow.
(N. Y.) 63: Webb ». Duckingfield, 13
Johns. (N. Y.) 390; McMillan 0. Van-
derlip, 12 id. 165; Wolfe v. Howes, 20
N. Y. 197; Monell v, Burns, 4 Den. (N.
Y.) 121; Clark v. Gilbert, 32 Barb. (N.
Y.) 576; affirmed, 26N. Y. 279; Cody
v. Raynaud, 1 Col. 272. In New Hamp-
shire the rule is, that if services are
rendered under a special contract — as
to labor for another for one year at a
certain price —a recovery can be had
under the special contract,even though
it is not fully performed, and that if,
under such contract, a party has actu-
ally received benefit from the service
rendered, he is liable therefor upon a
quantum meruit, if the advantage from
such part performance exceeds the
damages resulting from the breach,
upon the principle that the law will
only imply a promise to pay what the
services were reasonably worth in view
of the breach, and the damages sus-
tained by the hirer therefrom. Britton
o. Turner, 6 N.H.481; Bailey « Wood,
17 id.365. See, also, opinion of Git-

39

[#192]

carist, J., p. 370; Davis ». Barring-
ton, 30 N. H. 517; also, opinion of
Woop, C. J., p. 529, where he says:
“ Whatever might be the views of the
court as at present organized ina case
like that of Britton o.Turner, ante, and
however much, even, some may think
it is to be regretted that the rule of
law there laid down was allowed to
obtain, still, considering that it has re-
mained as the law of the State for
nearly twenty years, and has never
been overruled, and that while it has
the strong feature of its tendency to
the willful and careless violation of
express contracts fairly entered into,
to lead to its condemnation and disap-
proval, yet it has some features of ad-
vantage and strong justice to recom-
mend it.”

In Britton 7.Turner, ante, the plain-
tiff entered into the service of the de-
fendant under a contract to serve him
one year for $125, and after having
remained in his service nine months
left, without justifiable cause. It was
held that he could recover what his
services were reasonably worth over
and above the damage to the defend-
ant by reason of non-performance. The
doctrine of this case has been adopted
in Iowa; Pixler v. Nichols, 8 Iowa,
106; Texas; Carroll v. Welch, 26 Tex.
147; Indiana; Coe v. Smith, 4 Ind.82;
Ricks 0. Yates, 5 id.115; and Missouri;
Downey v. Burke, 23 Mo.228. In New
Hampshire it is held that, where an
action is brought to recover for servi-
ces rendered by one for another under
a contract that has not been fully per-
formed, the measure: of compensation
is the contract price less the damages
sustained from non-performance, if the
defendant sees fit to plead the same in
defense, instead of bringing a special
action therefor; Britton v. Turner, 6
N.H. 481; Page v. Marsh, 36 id. 305;
Bailey v. Woods, 17 id. 365; but when
a time for payment is fixed in the con-
tract, an action for part performance
will not lie before that time; Thomp-
son v, Phelan, 22 N. H. 339; Davis v.
Barrington, 30 id. 517; Hartwell o.
Jewett, 9 id. 249; Bailey v. Woods,
306

Contracts or Hirine.

claimed, either upon the contract or upon a guantum meruit.. On
the same principle, where a servant is dismissed for misconduct, he

ante ; and where no compensation is
to be paid for the whole service, the
law will not imply a promise to pay
for a part thereof. Where the plain-
tiff agreed to make a certain highway
for the defendant, in a particular man-
ner, but did not make it according to
the contract, it was held that, if the
defendants derived any benefit there-
from, they were bound to pay somuch
as the labor was reasonably worth.
Wadleigh ».Sutton, 6N.H.15. Where
a person sues for services rendered in
- the part performance of a contract,
payments that have been made thereon,
as well as the damages, are to be de-
ducted; Elliot ». Heath, 14 N.H. 181;
and in estimating the damages result-
ing from a non-performance of the en-
tire contract, injuries to his property,
as to his crops, which he was unable
to gather, but which might have been
gathered if the contract had been per-
formed, may be considered. Clough
».Clough, 26N.H. 24. In Indiana a
recovery may be had for a part per-
formance of a contract for service for
a definite term, upon a quantum meruit.
Coe v.Smith,4 Ind.79; Ricks v. Yates,
5 id.115; DeCamp ». Stevens,5 Blackf.
(Ind.) 24, in which a different doctrine
is held, was overruled by Coe v. Smith,

‘Cutter » Powell, 6 T. R. 320; 2
Sm. L. Ca. 1. It may be remarked,
that the rule by which a seaman’s
right to wages was made contingent
on the earning of freight was done
away with by the Merchant Shipping
Act, 1854, 17 & 18 Vict., c. 104, s. 88.
The rule never extended to the master.
Hawkins v. Twizell, 5 E. & B. 888;
25 L. J. Q. B. 160.

Where an employee dies before the
end of his term, a recovery may be had
at the rate contracted for, for the ser-
vices actually rendered; Clark v. Gil-
bert, 26 N. Y. 279; Yerrington v.
Greene, 7 R. I. 589; Wolfe v. Howes,
20 N. Y. 197; and in all other cases,
where his failure to complete his term
of service is involuntary on his part,
and does not arise from any of his,
he may recover for the services actu-
ally performed by him, less the damage

ante, and as in New Hampshire, the
+ :tion is held not to lie until the term
has expired. Ricks v. Yates, ante. In
Illinois it is held that, where one agrees
to work for a definite term and leaves
without justifiable cause, no recovery
can be had, and such is the prevailing
rule.

In Eldridge v. Rowe, 2 Gilman, 91,
the distinction between contracts for
services for a term and contracts to do
specific work is well illustrated.
Swanzey 0. Moore, 2211.63. See, also,
Schoonover. Christy, 20 Tll.426 ; Han-
sell ». Erickson, 28 id. 257; Badgley ».
Heald, 4 Gilm. 64. So where the time
of performance is made material a fail-
ure to perform, at the time will avoid
the agreement. Kemp ». Humphreys,
13 Il. 573.

In Cummings v. Nichols, 18 N. H.
420, it was held that upon quantum
meruit for services the plaintiff may
show that he was possessed of peculiar
skill, or any facts tending to enhance
the nature of his labor, and that the
defendant may, for the purpose of re-
ducing the recovery, show any facts
tending to lessen their value, as un-
skillfulness, intemperance, etc.

Where the plaintiff bound bis son as
an apprentice to the defendant by arti-

which his employer sustains by reason
of his inability to complete the term,
as where he is prevented from per-
forming by reason of his sickness;
Patrick ». Putnam, 27 Vt. 759; Hill-
yard ».Crabtree, 11 Tex. 264; Fenton
v. Clark, 11 Vt. 557; Clark ». Gilbert,
26 N.Y. 279; or in consequence of an
accident disabling him from complet-
ing the term, or if he is forcibly ab-
ducted or imprisoned, he is treated as
having involuntarily left the master’s
service, and may recover the wages ac-
tually earned by him. In Hughes ».
Wamsutta Mills, 11 Allen (Mass.), 201,
the defendants admitted the perform-
ance of the labor for which the action
was brought, but proved that the
plaintiff was to give two weeks’ notice
of his intention to leave, or not claim
any wages, which he did not do, but
was arrested, tried and convicted upon
Contracts or Hrrine.

cannot recover any wages due to him since the last pay-day.'

307
The

rule is otherwise in this country, and, with us, when a servant is dis-

cles that were voidable as to the infant,
and no compensation was to be paid
by the defendant for the son’s services,
the son avoided the contract. Held,
that the law would not imply a prom-
ise to pay for the services already
rendered by him. See, also, Maltby
». Harwood, 12 Barb. (N. Y.) 473;
Williams ».Finch, 2 id. 208; Livings-
ton ». Ackeston, 5 Cow. (N. Y.) 531;
Griffin o. Potter, 14 Wend. (N. Y.)
209.

So where no time is agreed upon for
payment, when the contract is only
partially performed, an action cannot
be maintained until after the lapse of
a reasonable time for the performance
of the whole contract. Davis v. Bar-

a charge of adultery, and was in jail
upon such charge at the time this ac-
tion was tried. He had a verdict for
the services actually earned by him
before his arrest, which was sustained
upon appeal, Bieztow, C. J., saying:
‘“‘The question at issue between the
parties to this suit depends entirely on
the construction of the contract under
which the plaintiff was employed.
This, we think, is misapprehended by
the counsel for the defendant. * * *
The stipulation evidently had refer-
ence only to a voluntary abandonment
of the defendant’s service, and not to
one caused vis major, whether by the
visitation of God or other controlling
circumstances. Clearly the abandon-

1Ridgway v. Hungerford Market
Co., 3 A. & E. 171; Walsh ». Walley,
L. R., 9 Q. B. 367; 43 L. J. Q. B. 102.
See, for instances of such dismissal,
Turner v. Robinson, 5 B, & Ad. 789;
Amor v. Fearon, 9 A. & E. 548;
Gould v. Webb, 4 E. & B. 938. The
act need not involve any moral delin-
quency; Turner v. Mason, 14 M. & W.
112; Smith v. Thompson, 8 C. B. 44;
Horton v. M’Murtry, 29 L. J. Ex. 260;
and want of skill to do work under-
taken justifies dismissal; Harmer 2.
Cornelius, 5 C. B. (N. 8.) 236; 28 L.
J. C. P. 85. It is not necessary for
the master to tell the servant the
grounds of his dismissal ; Baillie v. Kell,

*

rington, 30 N. H. 517; Smith ». New
Castle, 48 id.70; Thompson ». Phelan,
22 id. 339; Bailey ». Woods, 17 id.
369; Hartwell v. Jewett, 9 id. 249;
Evans 2. Hughey, 76 Ill. 115.

The doctrine of New Hampshire
courts, as expressed in Britton v. Tur-
ner, ante, does not meet with general
favor, and it is now held, in nearly all
the States, that full performance of
an entire contract for services must
precede a right of recovery, and a
failure in that respect, even to the ex-
tent of a single day, is fatal to the
servant’s right to recover any wages
for the term. This doctrine is pre-
dicated upon a sound public policy,
and in the interest of the industrial

ment must have been such that the
plaintiff could have foreseen it. He
could give notice only of such depart-
ure as he could anticipate, * * *
and when it was within his power to
give the notice. * * * It is settled
that absence from sickness or other
visitation of God would not work a
forfeiture of wages under such a con-
tract. * * * The true and reasonable
rule of interpretation to be applied to
such contracts is this: To work a for-
feiture of wages the abandonment of
the employer’s service must be the di-
rect, voluntary act, or the natural con-
sequence of some voluntary act of the
person employed, or of some act com-
mitted by him with a design to termi-

4 Bingn. N. C. 638; nor even to know
them at the time, provided a sufficient
ground for dismissal did then exist;
Ridgway ». Hungerford Market Co.,
3A. & H. 171; Willetts v.. Green, 3 C.
& K. 59; Spotswood ». Barrow, 5
Exch. 110; though he may by his
mode of pleading make his knowledge
of the misconduct material, and neces-
sary to be proved; Mercer v. Whall,
5 Q. B. 447; Cussons v. Skinner, 11
M. & W.161. Disability from tem-
porary sickness will not disentitle a
servant to wages, if the contract is
treated as subsisting throughout.
Cuckson v. Stones, 1 EH. & E. 248; 28
L. J. Q. B. 25. Permanent illness ~
308

Contracts oF Hiring.

charged for cause, he is permitted to recover the value of his ser-
vices not exceeding the contract price, less such damages as the

interests of the country. If servants
could be permitted to leave their em-
ployers at will, simply compensating
them for the loss sustained, by a de-
duction, from the wages earned, of
the little pittance that the law al-
lows as a measure of such loss, con-
tracts for service would be of little
value, and the interests of employers
would be constantly at the mercy of
employees. The rigor with which the
rule is enforced in this country can be
ascertained by a reference to the fol-
lowing cases:

Where a person-voluntarily fails in
the performance of an entire contract
for services he can recover nothing for
services rendered under it. Martin
v. Schoenberger, 8 W. & S. (Penn.)
867; Olmsteam v. Beale, 19 Pick.
(Mass.) 528; Ripley o. Chipman, 13
Vt. 268; Givhan ». Dailey, 4 Ala. 336;
Alexander ». Hoffman,5 W. & §&.
(Penn.) 882; Dunn » Moore, 16 Il.
151; or where he abandons it, Brown
». Kimball, 12 Vt. 617. But where
he is hindered or prevented from per-
forming by the other party, he may
recover, Blood v, Enos, 12 Vt. 625;
Higgins v. Soloman, 2 Hall (N.Y.), 482,
or where the other party dispenses with
full performance, Wilhelm v. Caul, 2
W. & S. (Penn.) 26, either expressly
or impliedly, Pelouze v, Stewart, 1 N.
Y. Leg. Obs. 170; Boyle v. Parker, 46
Vt. 343, or when he is prevented by
disease, accident or death. Fahy v.

nate the contract or employment, or
render its further prosecution impossi-
ble. Buta forfeiture of wages is not
incurred where the abandonment is
immediately caused by acts or occur-
rences not foreseen or anticipated, over
which the person employed had no
control, and the natural and necessary
consequence of which was not to cause
the termination of the employment of

excuses non-performance of a contract
for personal service. Boast v. Firth,
L.R.,40P.1; 388 L 3.0, P. 1.
So the death of either master or ser-
vant puts an end to the contract in the
‘absence of any stipulation to the con-

North, 19 Barb. (N. Y.) 341; Wolfe 2.
Howes, 24 id. 174, 666; affirmed,
court of appeals, 20 N. Y. 197; Clark
o. Gilbert, 26 id. 279; Fenton o.
Clark, 11 Vt. 557.

In Webb v. Duckingfield, 13 Johns.
(N. Y.) 389, the plaintiff entered into
shipping articles, by which he engaged
not to absent himself from the vessel,
without leave, until the voyage was
ended and the vessel was discharged
of her cargo. On the arrival of the
vessel at her last port of discharge,
and being there safely moored, he re-
fused to remain and assist in discharg-
ing the vessel of her cargo, but ab-
sented himself without leave. Held,
that there could be no recovery for the
services already rendered. See Cutter
». Powell, 6 T. R. 320.

In Thorpe v. White, 13 Johns. (N.
Y.) 58, the defendant gave the plain-
tiff a note for wages already earned
under an entire contract not fully per-
formed. Held, that the defendant
could not defend against the note,
upon the ground that the plaintiff left
his service before his term was ended.

* Miller v. Watson, 4 Wend. (N. Y.) 267;

Wright ». Butler, 6 id. 284; Stephens ».
Beard, 4 id. 606; Jewell v. Schroeppel,
4 Cow. (N. Y.) 564; Rapelye 0.
Mackie, 6 id. 250; Hoar v. Clute, 15
Johns. (N. Y.) 224.

In Lantry 7. Parks, 8 Cow. (N. Y.)
63, the plaintiff entered into the ser-
vice of the defendant under a contract

a party under a contract for services
or labor.” See, also, Millot v. Lovett,
2 Dane’s Abr.461, where the plaintiff,
who was a seaman, was employed to
go on a certain voyage, and was not
to be paid until the vessel returned.
The vessel was captured on the voyage,
and the plaintiff was taken prisoner.
It was held that he was entitled to re-
cover his wages.

trary. Farrow v, Wilson, L. R., 4 C.
P. 744; 38 L. J. C. P. 826. The pre-
mium paid with an apprentice cannot
be recovered back if the master dies.
Whincup v. Hughes, L. R., 6 C. P.
78; 40 L. J.C. P. 104.
Contracts oF Hirina.

309

master has sustained by reason of torts committed by him in the
service;' but it is held that the discharge does not operate as a

to serve him one year. After having
remained ten and a half months he
left the service, saying that he would
work no more. This was on Satur-
day, and on Monday he returned and
offered to resume work, but the de-
fendant refused to receive him back.
Held, that there could be no recovery.
See Faxon v. Mansfield, 2 Mass. 147;
Jennings v. Camp, 13 Johns. (N. Y.)
94; McMillan 2. Vanderlip, 12 id.
165.

In Marsh v. Rulesson, 1 Wend. (N.
Y.) 514, the plaintiff entered into the
defendant's employment for two
weeks, and, having worked for ten
days, left in consequence of some
rough language of the defendant.
Held, that he could not recover for
the ten days’ labor.

In De Camp 2. Stevens, 4 Blackf.
Cnd.) 24, the plaintiff entered into a
contract with the defendant to work
for him one year. He worked a little
over three months and quit the service
without good cause. It was held that
he could not recover for the service
rendered, although it was shown that
the defendant had manifested a desire
to get rid of him, and had said, after
he had left, that he was glad he was
gone, as he was worth nothing to
him.

In Davis v. Maxwell, 12 Metc.
(Mass.) 286, the plaintiff contracted to
work for the defendant seven months,
at $12 a month. After working three
menths and seven days he quit with-
out cause, and it was held, that al-
though the compensation was meas-
ured by the month, yet as no agree-
ment to pay monthly was shown, the
contract must be treated as entire,
and full performance was a condition
precedent to a right of recovery.

In Gillis v. Space, 63 Barb. (N. Y.)
177, the plaintiff was employed for a
term, and quit before the term had
expired, because the master used harsh
language to him, and because he did
not have enough to eat. He failed to

1Taylor 0. Paterson, 9 La, Ann.
251; Green v. Hulett, 22 Vt. 188;
Murdock ». Phillips’ Academy, 12

establish either ground of excuse, and
the court held that he could not re-
cover for the wages earned.

In Clark v. School District, 29 Vt.
217, the plaintiff contracted to teach
school for a definite period and left
before the term was ended. Held,
that he could recover nothing for past
services.

In Larkin ». Buck, 11 Ohio St. 561,
the plaintiff contracted to work for
the defendant at $11amonth. After
woking. about one month he left
without cause. Held, that he could
not recover. .

In Hutchinson ». Wetmore, 2 Cal.
310, the plaintiff contracted to work
for the defendant eight months for
$100 a month for himself and $100 for
his wife for the term. At the expira-
tion of four months the defendant
was to give him a note for one-half
the amount, payable at the expiration
of his term of service. Having re-
mained four months, he quit without
legal excuse. Held, that no recovery
could be had.

In Eldridge v. Rowe, 7 Ill. 91, the
plaintiff contracted to work for the
defendant eight months for $90. Hav-
ing worked four months, he quit with-
out cause. Held, that he thereby for-
feited his wages earned.

In Mack ». Bragg, 30 Vt. 571, the
plaintiff contracted to labor for the
defendant for a term of years, by
parol. Having quit before the term
was ended without cause, it was held
that although the contract was within
the statute of frauds, yet he could re-
cover nothing for the services ren-
dered under it. But it must be re-
membered that this decision was ren-
dered under the peculiar statute of
Vermont, which does not make verbal
contracts, not to be performed within
one year, void, but simply provides
that no action shall be maintained
thereon.

If an agreement be entire to serve

-for more than one year for a stated

Pick. (Mass.) 244; Carroll ». Welch,
26 Tex. 147.
310

Contracts oF Hrrine.

rescission of the contract so as to entitle the servant to sue upon 4
quantum merwit, but that he must either sue upon the contract for

compensation, and the servant aban-
dons the service at the end of six
months without cause, no recovery
can be had, even though the contract
is within the statute of frauds; Phill-
brook v. Belknap, 6 Vt. 383; but if
the agreement be entire, and there is
to be nothing paid until the term is
ended, yet if he is prevented by sick-
ness from completing the contract, he
may recover pro rata for the services
actually rendered. Fenton». Clark, 11
Vt. 557. When, however, a person is
hired by the day, to work upon a par-
ticular job, he cannot be required to
prolong his service in order to com-
plete a particular piece of work he
has undertaken, or upon which he
may happen to be employed ; but if
the contract is to doa particular piece
of work by the day, he will be bound
to complete it. Wyngert ». Norton,
4 Mich. 286. So when, in a contract
for services, there is an agreement
that the plaintiff shall render services
for which he was to be paid, and also
services for which no compensation
was to be. given, if the services for
which compensation was expected are
rendered, a recovery therefor cannot
be prevented, because the services for
which no compensation was expected
were not performed, unless the con-
tract is entire or the part for which
no charge was to be made formed a
part of the inducement to his employ-
ment at all. In Walker v. Norton, 29
Vt. 230, the plaintiff, who was the
principal of an academy, required the
defendant to assist him in getting up
an exhibition of its students and pro-
cure music therefor, and it was un-
derstood between them that the ;iain-
tiff should indemnify him Yor his ser-
vices and expenditures, a subscription
being relied upon for raising’ the re-
quired funds. As a part of the plain-
tiff’s employment, it was expected
and understood that he was to take
part as an actor in the exhibition,
which he refused and neglected to do.
It was held, that as it did not appear
that any compensation was expected
for the dramatic portion of the ser-
vices, or that this formed any induce-
ment to the other portion of the em-

ployment, the refusal to perform as an
actor would not prevent a recovery
for the other.

A servant may abandon the service
for a breach of any of the express or
implied provisions of the contract, as
when the master fails to provide him
with sufficient and wholesome food,
or suitable and comfortable lodging.
Gillis ». Space, 63 Barb. (N. Y.) 177;
Bell’s Principles, 170; Frazer’s Master
and Servant, 70; Pothier’s Tr. Cont.
Louage, art. 178. And in England,
by statute, the master’s neglect to
provide necessary food, etc., is an in-
dictable offense; 14 and 15 Vict. 11;
and at common law such was the case
as to infants and children of tender
years. Friend’s Case, Russ. & Ry. C.
C. 22; Rex v. Ridley, 2 Camp. 650;
or when he treats him improperly, as
by assaulting him; Matthews ». Terry,
10 Conn. 455; or otherwise rendering
his life so uncomfortable as to render
it improper for the servant to submit
to it, from whatever cause; Gillis 2.
Space, ante; or when the master
neglects or refuses to pay him his
wages as he has contracted to do; R.
R. Co. o. Spurck, 24 Ill. 588; Canal
Co. o. Gordon, 6 Wall. (U. 8.) 561;
or requiring of him the performance
of services not contemplated in the
contract of hiring; Baron v. Placide,
7 La. Ann. 229; or exposing him to
dangers not ordinarily incident to
the business. Priestley v. Fowler, 3
M. & W 1; Patterson ». Wallace, 1
Macq. H. L. Cas. 748. Requiring him
to perform illegalor immoral services;
Com. ». St. German, Browne (Penn.),
24; overworking him; Frazer’s Master
and Servant, 74; exposing him to im-
moral or improper influences; Patter-
son 0. Gage, 23 Vt. 558; Berry 2.
Wallace, Wright (Qhio), 657; Warner
v. Smith, 8 Conn. 14; compelling him
to work on Sunday; Com. o. St.
Germans, ante; or indeed any act or
neglect of the master, prejudicial to
the morals, reasonable comfort, safety,
health, or reputation of the servant,
or which is in violation of the pro-
visions of the contract of hiring, ex-
press or implied. Mere harsh lan-
guage used to the servant; Forsyth 0.
Contracts or Hrrra.

311

wages, or for damages for its breach, and that, in either event, his
recovery is limited to the contract price subject to such deductions
as the employer is legally entitled to.!

Hastings, ante; not calculated essen-
tially to impair his reasonable com-
fort; Gillis 7 Space, ante; is not a
good ground for leaving the service,
but if the master’s language and con-
duct toward the servant is such as is
unreasonable, and prejudicial to the
comfort or moral education of the ser-
vant, there can be no question but
that it would afford a sufficient justi-
fication for the servant in putting an
end to the contract. But the jury
are to judge of the reasonableness of
the excuse in view of the circumstan-
ces, the language and conduct of the
master, the frequency of the cause,
the provocation, if any, for the lan-
. guage or conduct, its effect upon the
servant, and in all cases the age of
the servant is 4 matter of material im-
portance; as what might be regarded
as a very good excuse in the case of a
young person, might be regarded as
no excuse at all on the part of a per-
son of mature years. Indeed, except
under very aggravated circumstances,
it may be regarded as a dangerous ex-
periment for any servant to quit ser-
vice for that cause. Marsh v. Rules-
son, ante. See cases cited, ante. It
is the master’s duty, where he fur-
nishes board and lodging to the ser-
vant, as a part of the contract, to pro-
vide him with suitable lodging, and
with good and wholesome food, and
sufficient of it. He is not bound to
consult the tastes of the servant, or
to cater to his peculiar notions; the
law, however, requires that he shall
make provision in this respect, that is
reasonable in view of the nature of
the employment, and of the ordinary
usages of society. Gillis v. Space,
ante ; Frazer’s Master and Servant, 70;
Bell’s Principles, 171. He is bound,
so far as is consistent, to consult the
comfort of his servant, but as to what
is consistent or reasonable, is essen-
tially a question of fact, dependent
upon the circumstances of each case.
Thus, it has been held that the mere
fact that a man servant had a diffi-

culty with another servant, did not
furnish a good cause for his abandon-
ing the service; Mullen v. Gilkinson,
19 Vt. 503; while in another case it
was held that a female servant who
had been treated rudely and improp-
erly by a neighbor’ of the master, the
master being in no wise blamable
therefor, was, for that cause, justified
in leaving before her term of service
was completed. Patterson v. Gage,
23 Vt. 558. The true rule in matters
of this character may be said to be
that, where a servant is, even without
the fault of the master, by the ser-
vices, exposed to dangers, physical or
moral, or improper influences not con-
templated or known at the time of
entering into the contract, he or she
may legally put an end to the con-
tract. If the master has other ser-
vants in his employ who threaten
bodily harm to another servant, or if
he has neighbors who do so, there
can be no question that, if such
threats excite a reasonable apprehen-
sion on the part of the servant that
they will be executed, this would
generally furnish a good excuse
for leaving. So, in the case of
a female servant, if she is taken
into a neighborhood where _ she
is exposed to insult and frequent
attempts upon her virtue, she could
not reasonably be required to remain,
and the law would not compel her to.
But, in cases of this character, the rea-
sonableness or the excuse is for the
jury, in view of all the facts, and if the
servant brought about the condition of
things by his or her own folly, it would
have a material bearing upon the ques-
tion. If a master himself indulges in
obscene or blasphemous language, or
if he employs other servants who do
so, this might be a very good cause for
a young servant, or one who did not
himself indulge in such language, to
depart from the service. The use of
such language by a servant is a good
ground for his discharge by the mas-
ter, and the habitual use of it by the

‘Jenkins v. Long, 8 Md. 182.
812 Conrracts or Hrrine.

Sec. 270. Service improperly determined.

” Where the service has been determined before the natural time,
by the wrongful act of the defendant, some questions of nicety
arise, both as to the amount that may be recovered, and the mode in
which it must be sued for.

Sec. 271. Difference between agreement to retain in service, and agreement to
pay for service.

In the first place, “the distinction is very important between an
agreement to retain and employ for a given term, and then to pay
for services, at the end of the term, a sum certain; and simply to
pay a sum certain for services at the end of tue term. In the
former case, the person employed has an immediate remedy the
moment he is dismissed without lawful cause, for a breach of the
contract to retain and employ, and will recover an equivalent for the

master or other members of his family,
or by other servants, would doubtless
be regarded as a good excuse for a ser-
vant to quit the master’s employ. Mat-
thewson v. McKinnon, 10 8. (Sc.) 825.
To attempt to enumerate all the 1n-
stances which would justify a servant
in quitting service before his term is
ended would be impossible. In all
cases, where the facts are not admitted,
the question of reasonableness is one
of fact for the jury, and the servant
takes the burden of establishing a rea-
sonable excuse in all cases. Tozer v.
Hutchinson, 1 Hannay (N.B.), 540.
The fact that the employer finds
fault with a servant does not furnish a
good cause for quitting his service, un-
less the language used by him is so
harsh and severe as to render it im-
proper for him to remain, and whether
this is so or not, is a question of fact.
But, however good a cause one may
have for quitting his employer’s ser-
vice, if he does not avail himself of it
at the time, he is treated as having
waived it, and having once condoned,
he cannot subsequently rely upon it.
In Brown ». Kimball, 12 Vt. 617, the
plaintiff, hired fora term, quit his em-
ployer’s service under the following
state of facts: The defendant, upon the
occasion of drawing some logs for him,
found fault with him and used very
harsh and severe language to him,

\

which the auditor found was sufficient
to justify him in leaving the defend-
ant’s service, but the plaintiff did not
do so, but remained two days longer,
when he quit, alleging as a reason, that
the defendant found fault with him
and used harsh language toward him,
as previously stated. Held, that he
could not recover. See, also, Gillis v.
Space, 63 Barb. (N. Y.) 177; Forsyth
o. Hastings, 2 Vt. 646.

Wrongfully charging the servant
with a crime is a good cause for put-
ting an end tothe contract. In Long-
muir. Thomson, 11 §.(Sc.) 571, the
master, a baker, charged the plaintiff,
his servant, with stealing a bun and
some fruit. The charge could not be
sustained. Held, that the servant was
justified in quitting the master’s ser-
vice. The rule is, that the master is
to treat the servant humanely, and he
has no right to annoy, vex or illy treat
him, neither is he justified in falsely
imputing conduct to him that would
tend to disgrace or degrade him. See
Opinion in Longmuir v. Thomson, ante.
If, by a system of oppression and vex-
ation, he compels the servant to leave,
he cannot avail himself of the forfeit-
ure of his wages, which he otherwise
might claim. Longmuir v. Thomson,
ante ; Wood’s Law of Master & Servant,
279-288.
Contracts or Hire. 313

breach of the employer’s contract, which may be less than the stipu-
lated wages payable at the end of the term, if it happens that he
has the opportunity of employing his time beneficially in another
way, and the employer is not *bound to pay the whole of the #193]
agreed sum. But, in the latter case, that is, if the agree-"  ~
ment is that the person retained is to be paid a certain sum for his
services at a certain time, provided he serves, there being no, con-
tract to retain and employ during that term, he can only maintain
an action after that time has arrived, for non-payment, and then is
entitled to recover the full amount though his loss may be much .
less. Convenience is decidedly in favor of construing such agree-
ments to be contracts for retaining as well as for the payment of
wages.’

Sec. 272. Intention of parties.

In this, as in all other cases, upon the construction of agreements,
the question is, what, as may be gathered from the whole terms and
tenor of the contract, was the intention of the parties. On the one
hand, there may be cases in which the performance of the ‘express
obligation imposed upon one party presupposes an obligation upon
the other party, which is not expressed. On the other hand, care
must be taken not to introduce obligations upon either party, in
respect of which the contract is intentionally silent, or which are
contrary to its terms.’

Sec. 273. Effect of word “ agreed.”?

The following rules may, perhaps, help in construing such con-
tracts: First— The word “agreed” is the word of both, as was
held in the case of Pordage v. Cole.* Therefore, where it is agreed
that a person shall do a particular thing, or perform a particular
service, for a particular sum of money, this involves an obligation
on the part of the other to allow him to do that which will enable
him to earn his money. This was the foundation of the decision in
Elderton v. Emmens.* There it was agreed between the plaintiff
and defendants (a public company) that the plaintiff, as attorney of

1 Per Parke, B., Emmens ». Hl- 31 Wms. Notes to Saund. 548.
derton, 4H. L. 0.668; 13.0. B. 532. 46C. B. 160; 17 L. J.C. P. 307,

2See yer Cocxsurn, C. J., Church- affirmed in Dom. Proc., 13 C. B. 495;
ward v. The Queen, L. R.,1 Q. B. 4H. L, C. 625.

195.
40
314 Contracts or Hirine.

the company, should receive a salary of 1002. per annum, in lieu of
rendering his annual bill of costs, and should for such salary advise
the company in all matters connected with their business, and attend
[194] upon them when required. At the end of three months *they

dismissed him, and refused to pay him more than 50/. The
court held that this agreement created the relation of attorney and
client, and amounted to a promise to continue that relation at least
for a year. Consequently that the agreement was broken by dis-
missal, and that an action might at once be brought for the damages
accruing from it, without waiting till the end of the year.

Sec. 274, Where service is a mode for paying a debt.

A similar obligation will be implied, when the object of the con-
tract of service is to supply a means by which the person who is to
pay for the service may discharge a previously existing debt, due to
the person who is to render the service. For instance, §., the agent
of an insurance company, was indebted to it, and the plaintiff dis-
charged his debt. The company agreed to appoint him joint agent
with S. at the same rates of payment as before, and covenanted that
in case they displaced S. they would repay to the plaintiff the money
he had paid. They subsequently transferred their business to an-
other company, and refused to repay the plaintiff his money. The
court held that, as the object of the arrangement was to enable the
plaintiff to repay himself through the sums to be received by S.,
there was an implied covenant that the company would do nothing
of their own act which would put an end to the continuance of that
service, without which the object of tae arrangement could not be
attained.

Sec. 275. Where covenants to serve and pay are independent.

Where the agreement is that the plaintiff shall render certain
specified services during a specified time, and that the defendant
shall pay specified sums for these services, there may be circumstances
to induce the court to hold that the covenants on each side were
intended to be independent. The result of such a construction
would be, that the defendant would be under no obligation to con-
tinue the employment, and could not be sued for dismissing the

‘ Stirling », Maitland, 5 B. & S. » Belcher, 14. B. (N.S. ) 654; 32
840; 34 L. J. Q. B.1. SeeM’Intyre L. J. C. P. 254.
Contracts or Hirine. 315

plaintiff from his service. On the other hand, the plaintiff would
be entitled from time to time to sue for the stipulated sums, pro-
vided he continued ready and willing to perform the service, if per-
mitted to do so. This was the point decided in Aspdin v. Austin!
and Dunn *v. Sayles.’ In each of those cases the services to
be rendered extended over a period of several years, and the
court held that the defendant could not be supposed to have con-
tracted to continue his business during the whole of that time, at
any amount of loss or inconvenience to himself. Those cases have
been severely observed upon ; but it is submitted that the principle
laid down is good law, though it may be open to doubt whether it
was, in each case, rightly applied. The case of Churchward v.
The Queen’ appears precisely in point. There a contract had been
entered into between the crown and the plaintiff, for the conveyance
of mails and certain similar services, for a period of eleven years.
The plaintiff was, during the whole of that period, to keep vessels
ready to perform such services of the class stipulated for, as he
might be required to perform, and was to be remunerated at the
rate of 18,0002. per annum, by quarterly payments to be made out
of moneys to be provided by parliament. The contractor was ad-
mittedly ready and willing to perform the services, but before the
expiration of the term parliament refused to provide the money. A
petition of right was preferred. It was admitted that it could not
be shaped in the form of an action for the money, as it would have
been necessary to aver that there were funds provided. It was,
therefore, put in the form of an action for refusing to employ the
contractor, and for preventing him from carrying the mails and
earning the money. The court held that there was no express
covenant to employ the contractor, and that there was no reason to
imply such a covenant, as his remuneration did not depend upon
his being employed, but upon his being ready and willing to be em-
ployed. It would have been different if his remuneration had

[195]

15 Q. B. 671.

2 Td. 685.

® See, for remarks against them, per
Witizs, J., and Erusz, C. J., McIn-
tyre v. Belcher, 14 C. B. (N.°S.) 654;
32L. J. C. P. 254; and per Cromp-
ton, J., and Eriz, C. J., in Emmens
v. Elderton, 4 H. L.C. 647, 656. On

the other hand, they were treated as
good law by Mautg, J., and Parxeg,
B.,4 H. L. C. 661 and 669; by Cocx-
Bury, C.J., and SHex, J., in Church-
ward v. The Queen, L. R, 1 Q. B.
191, 208; and by Rours, B., in Pilk-
ington v. Scott, 15 M. & W. 657.
4L. BR, 1 Q. B. 173,
816 Contracts or Hiring.

depended on the number of mails to be conveyed, instead of being
a fixed quarterly sum. The result was, that if there had not been
the provision making payment depend upon funds provided by
[#196] parliament, the *contractor would have been entitled to pre-

sent his bill quarterly till the end of the contract, though he
was never once employed, provided he could show that he was
always ready to perform the services if required.

Sec. 276. Agreement to supply work not always implied.

An agreement to retain and employ does not involve an under-
taking to supply work, unless such an undertaking is expressly con-
tained, or must be necessarily inferred from the whole of the terms.
For instance, the retainer of a doctor or a solicitor, or an actor, at a
salary, does not involve any obligation upon the contracting party
to do more than pay the salary; he is not bound to have work for
the other to do, nor even to give him the work, if he has it But
if A is bound for a specified term to work exclusively for B, and is
to be paid by wages estimated with reference to his work, this in-
volves an obligation to find him work by which he may earn his
wages. And the inference would be stronger if the contract con-
tained a stipulation that B might dismiss A, by giving him a
specified length of notice.” Accordingly, until notice or dismissal,
A would be entitled to the wages he had earned, or might reason-
ably have earned, if allowed to do so. Upon notice he would be
entitled to similar wages till the expiration of the term. Upon dis-
missal, without notice, he would be entitled to recover damages for
wrongful dismissal upon the usual principles. But where the em-
ployment is not exclusive, and the agreement is merely that A shall
do such work as B may offer him, at a stipulated rate, this implies
no obligation on B to offer any work, or to continue the business
out of which such work could arise.‘

An agreement to pay a salary of so much per annum is merely
a yearly hiring, at so much per annum, while the service lasts.‘

1 Per Parke, B., Emmens 2. El- See, too, per Cocxsurn, C. J.,
derton, 6 C. B. 160; 4H. L. C. 625; Churchward » The Queen, L. R., 1
13 C. B. 495. Q. B. 195, 197; per Suen, J., id. 207.

2 Pilkington v. Scott, 15 M. & W. ® Burton v G. N. Ry. Co., 9 Ex.
657; Reg. 0. Welch, 22 L. J. M. C. 507; 28 L. J. Ex. 184; Rhodes 2.
145; 2 E. &B. 357; Whittle v, Frank- Forwood, 1 App. Ca. 256.
land, 2B. & 8.49; 831L.J. M.C.81. ‘4 Elderton ». Emmens, 6 C. B. 175.
Contracts or Hirina.

317

Sec. 277. Remedy for improper dismissal.

Where there is a contract toemploy for a defined time, and the ser-

vant has been dismissed without just cause, he may sue *spe-
cially on the contract to employ him; and this action may be

[*197]

commenced at once upon the dismissal.! And where the service is to

1 Pagani v. Gandolfi, 2 C. & P. 370.

When aservant is improperly dis-
charged; that is, when there is no suf-
ficient legal excuse therefor, and his
original term of service has not ex-
pired, he may elect to treat the con-
tract as at an end, and sue for wages
already earned, or he may sue for a
breach of the contract and recover
his probable damages, or he may wait
until the end of the term and sue for
the actual damages he has sustained,
which can in no case be in excess of
the amount of the wages provided for
in the contract. Bradshaw v. Bran-
an, 5 Rich. (8. C.) 465; McDaniel
v. Parks, 19 Ark. 671; Jones v. Jones,
2 Swan (Tenn.), 605; Miller v.God-
dard, 34 Me. 102; King ». Steiren,
44 Penn. St. 99; Baron ». Placide,
7 La. Ann. 229; Webster v. Wade, 19
Cal. 291; Fowler v. Armour, 24 Ala.
194; Heim o. Wolf, 1 E. D. Smith
(N. Y. C. P.), 70.

But he cannot pursue all these rem-
edies in separate actions; a judgment
upon one will be a bar to any further
action, even though the court held in
the former action that there could be
a recovery for only a part of the wages
earned, because, under the contract,
they had not become due. Colburn
v. Woodworth, 31 Barb. (N. Y.) 381.
And the same rule applies where a
servant is employed for a term under
a valid contract, and the employer re-
fuses to allow him to perform the ser-
vice or to receive him into his employ.
Davis v. Ayres, 9 Ala. 292. Upon a
quantum meruit, he can only recover
for the services actually rendered ;
Colburn », Woodworth, 31 Barb. (N.
Y.) 381; Madden v. Porterfield, 8
Jones (N. C.), 166; and in an action
for damages; Nations ». Cudd, 22
Tex. 550; Clancey »v. Robertson, 2
Mill (S. C.), 404; Decker ». Hassel,
26 How. Pr. (N. Y.) 528; Jones »,
Graham, 21 Ala. 654, the actual dam-
ages he has sustained in addition to
the wages he earned; Gillis v. Space,

63 Barb. (N. Y.) 177; Sherman 2.
Champlain Trans. Co., 31 Vt. 162;
and in case he has, by diligence, been
unable to secure other employment,
during the entire term, he can re-
cover the entire wages, less what he
has actually earned during the interim,
or what he might have earned by the
exercise of proper diligence in seeking
for employment in the same or similar
business. He is entitled to recover
for the time he was necessarily idle
after his discharge, but he cannot re-
cover the wages accruing for the bal-
ance of the term, as a matter of course.

He is bound to use reasonable ef-
forts to secure labor elsewhere. He
cannot sit down supinely, and, with
folded hands, insist upon the payment
of his wages, but must seek employ-
ment elsewhere, or at least use reason-
able efforts to sccure it. Prima facie,
however, he is entitled to recover the
entire sum, and the burden is upon
the defendant to show that the plain-
tiff has not used reasonable efforts to
secure employment elsewhere; and as
to what is reasonable effort is
necessarily a question of fact, de-
pendent upon the circumstances of
each case. Byrd v. Boyd, 4 McCord
(S. C.), 246; Gillis 0. Space, ante ;
Sherman »v. Transportation Co., ante ;
Howard v. Daly, 61 N. Y. 362. If, by
reasonable diligence, he could not
find employment. of the same or a
similar character, he is entitled to re-
cover damages to the extent of the
wages for the whole term, and the
burden of showing that he might have
found employment elsewhere is upon
the defendant. Gillis o. Space, ante ;
Polk v. Daly, 14 Abb. Pr. (N.S. N.
Y.)$156; Moody ». Leverich, id. 145.
In Costigan v. Mohawk R. R. Oo., 2
Den. 609, the plaintiff was employed
by the defendant to serve as their
superintendent forone year, at a sal-
ary of $1,500, and the use of a dwell-
ing-house, worth $150. After serv-
ing two months, he was discharged
318

Contracts oF Htrne.

commence on a future day, ana before the arrival of that day the em-
ployer positively renounces the covenant, even without doing any thing

without cause. In an action to re-
cover his salary for a year, the court,
Brarpstey, J., said: ‘As a general
principle, nothing is better settled
than upon these facts, the plaintiff is
entitled to recover his full salary for a
year. He was ready during the entire
year to perform his agreement, and
was not in fault. * * Had it been
shown in the case at bar that the
plaintiff, after his dismissal, had en-
gaged in other business, that might
very well have been admitted to re-
duce the amount. * * But the de-
fense set up should be proved by the
one who sets it up. He seeks to-be
benefited by a particular matter of fact,
and he should therefore prove the mat-
ter alleged by him. * * He is the
wrong-doer, and presumptions between
him and the wronged should be made
in favor of the latter. For this rea-
son, therefore, the onus must in. all
such cases be upon the defendant.”
Kleine v. Catara, 2 Gall. (N. 5.) 66;
Shannon v. Comstock, 21 Wend. (N.
Y.) 457; Heckscher v. McCrea, 24
Wend. (N. Y.) 804. The rule, as laid
down by the court, in Willoughby v.
Thomas, 24 Gratt. (Va.) 522, is as fol-
lows: ‘‘His right of recovery in case
of a discharge without cause should
be limited to the amount of damages
actually sustained.”

The broad statement made in some
of the cases, that the plaintiff is en-
entitled to recover his wages for the
entire term, if he has been wrongfully
discharged, if he has at all times held
himself in readiness to discharge those
services when required to do so, is not
intended in that sense, and is not in
conformity with principle or author-
ity. Prima facie this is the rule of
recovery, but really it is limited to the
actual loss which the servant sustains,
which is the amount he would
have received if he had been per-
mitted to complete his contract, less
what he has earned in the meantime, or
what he might have earned by due dili-
gence in seeking employment. If he
finds employment at the same wages,
or even higher, he is entitled to re-
cover for the time actually lost, but if
he finds employment at less wages, the

measure of recovery is the difference
between the amount earned and what
the master was to pay him. Wil-
loughby ». Thomas, 24 Gratt. (Va.)
522; Gillis ». Space, 63 Barb. (N. Y.)
177; Sherman v7, Champ. Trans. Co.
31 Vt. 550; Sugg v. Blow, 17 Mo. 359.
He recovers not for services rendered,
but damages for discharging him be-
fore the termination of his agreement,
that is, for refusing to employ and
pay him according to the contract.
If it appears that he was idle and
could not obtain employment, his
damages would be the whole compen-
sation agreed on. But, if he ob-
tains employment, then he is only en-
titled to a partial recovery. Inera-
Ham, J., in Heim v. Wolf, 1 E. D. 8.
(N. Y. C. P.) 70. The law simply
intending to save the servant from
actual loss by the master’s breach of
the contract; Nations » Cudd, 22
Tex. 550; it is the duty of a servant
discharged without cause to make the
best use of his or her time for the bal-
ance of the term; Sherman v. Cham-
plain Transportation Co., ante; and
the master may always show, in miti-
gation of damages, that he might
have procured employment elsewhere.
King v. Steiren, 8 Wright (Penn.), 99;
SHARSwoop, J., in Chamberlin 2.
Morgan, 68 Penn. St. 169; Jones 0.
Jones, 2 Swan (Tenn.), 605; Sherman
v. Transportation Co., ante ; Costigan
0. Mohawk R. R. Co., 2 Den. (N. Y.)
609; Walworth v. Pool, 9 Ark. 394;
Rogers v. Parham, ante; Fowler v.
Armour, 24 Ala. 194; Davis v. Ayres,
9 id. 292; McDaniel ». Parks, 19
Ark, 671; Ricks v. Yates, 5 Ind. 115.
And if he sues for the wages, and
claims to recover the whole sum, he
must show his readiness and ability to
perform the contract at all times dur-
ing the balance of the term. Wise-
man 2. Panama R. R. Co., 1 Hilt.
(N.Y. C. P.) 300. In Polk ». Daly,
14 Abb. Pr. (N.S. N. Y.) 156, the
plaintiff brought an action for dam-
ages for a breach of a contract for his
services as an actor in defendant’s
theater, from September 15, 1870, to
June 1, 1871, at asalary of $65 a
week, and a benefit, to consist of
Contracts or Hirrna.

319

to incapacitate himself from performing it at the appointed day, the

servant may sue at once.

either one-third the gross receipts
or the net proceeds of the benefit
night’s receipt. He was discharged
without cause. But in his complaint
he did not allege, nor did he prove
performance, or tender of, or readiness
to perform any service during the
period for which such salary is
claimed, but asks to recover firstly,
salary of $65 per week for eight and
a half weeks, and, secondly, the sum
of $300 for the night’s benefit, of
which he claims to have been deprived
by defendant’s refusal to afford it to
him.

The answer, after a general denial
as to other matters, admitted the con-
tract; justified the discharge under
an alleged breach of plaintiff's obliga-
tions by his refusal to perform parts
in plays or characters assigned him;
that plaintiff thereupon left the city,
and remained in or near Baltimore, in
the State of Maryland, during the
remainder of the season, and did not
at any time after his discharge per-
form or offer to perform his contract.

The jury, under unexceptional in-
structions from the court in that re-
spect, found the plaintiff was justified
under his contract of service with the
defendant as an actor, in refusing to
act in a part assigned him inferior to
the role of characters which he had
agreed to represent, and that he was
discharged from his employment with-
out just cause. For this he was
awarded in the court below $688.10
as compensation, -at the contract rate
of $65 per week, as for full perform-
ance, with some addition for the
benetit.

Upon his discharge on April 4, the
plaintiff, by letters of the fourth and
sixth of that month, denied defend-
ant’s right to discharge him, and
offered performance on his part, which
was not accepted. “About a week
afterward he left the city, and went
to Baltimore, and for the remainder
of the period of his engagement spent
his time there or in Virginia. He
went a-fishing.” Subsequent to his
discharge he made no effort to get
any other employment in his line of
business. The justification he offered

And the jury, in assessing the damages,

for this was, that it was not very easy
to secure employment after April 4.
The season in New York theaters had
almost expired,and they don’t engage
actors then. I don’t think I could
have found employment of my stand-
ing in any theater.” Among other
grounds for the motion to dismiss the
complaint were these: That it ap-
peared from the evidence that the
plaintiff made no sufficient tender or
offer of his services under the con-
tract; that he made no effort to secure
other employment, and placed it out
of his power to receive employment,
from the defendant and others. These
several grounds of dismissal were
overruled and defendant excepted.
At the conclusion of the testimony
defendant’s counsel asked the court
to charge that the plaintiff, by leaving
the city, rendered it impossible for
the defendant to employ him, and to
this the court responded: “If you
(the jury) are satisfied that he ab-
sented himself to avoid the engage-
ment, then he cannot recover.” To
this qualified charge no exception was
taken. Defendant’s counsel further
requested the court to charge ‘‘ that
the plaintiff should have: applied for
employment elsewhere, and cannot
recover if he neglected to do so.”
This was refused and defendant ex-
cepted.

Roginson, J., in delivering the
opinion of the court, said: ‘“ Under
such circumstances, I am of the
opinion the judgment cannot be sus-
tained.

First. Plaintiff was not entitled to °
recover either wages for services ren-
dered during the eight weeks follow-
ing his discharge or for damages ensu-
ing from his unlawful discharge, com-
putable upon the rate of such weekly
wages, except upon the assumption
that he made and sustained such a
tender of performance as was equiva-
lent to actual performance. In a week
after his discharge he left the city for
the Southern States, and for all the
subsequent period of his engagement
was absent at the south, and in no way
tendered his services, or rendered him-
self subservient to the objects of the
320

Contracts or Hirine

would be justified in looking at all that had happened or was likely
to happen, to increase or mitigate the loss of the plaintiff down to

contract, or to any such use of his ser-
vices, as it contemplated. It could in
no respect be held that he earned
wages for services actually rendered in
the employment of the defendant
when he was engaged in his own pur-
suits or amusements at the south,
without having obtained any consent
or license of the defendant, or having
given the defendant some notice of his
remaining subject to immediate recall
when wanted, or in some other way
offering or continuing a tender of his
services during this period. There
are certain contracts in respect to
which tender of performance is
deemed equivalent to performance so
as to entitle the party ready to perform
to sustain an action for such compensa-
tion, as full performance would have
‘ insured to him; to wit, as upon an
agreement for the sale and purchase of
real estate, where the vendor has tend-
ered a conveyance; Shannon v. Com-
stock, 21 Wend. 457; Richards v.
Edick, 17 Barb. 260, and cases cited,
265; for goods sold, delivery whereof
has been tendered. Bement v.Smith,
15 Wend. 493; Dustan ». McAndrew,
44 N. Y. 72, and cases cited. But
that the tendered performance should
stand as a substitute for the actual,
can only be maintainable upon the
ground that the thing agreed to be
sold has an independent existence, and
the corpus not being perishable or
‘changeable, the title had so far passed
that the vendor remained but the trus-
tee of the vendee in respect to it, and
on subsequent payment of the price
the specific fhing may still be deliv-
ered over or duly accounted for to the
vendee. Shannon v. Comstock, supra.
On such tender the vendor assumes to
preserve with ordinary care the thing
agreed to be conveyed ready for trans-
fer, on compliance by the vendee with
the terms of purchase, unless he choose
to exercise his right to sell under the
vendor's lien, and any inconsistent use
or diversion of it amounts to an aban-
donment of the tender.

“Tf there exists any analogy in a
contract for the hire of services where
the employee has been unjustly dis-
charged, his tender and continued

offer and readiness to perform them,
his reasonable efforts to obtain other
employment or his entry in good faith
into other employment, are necessary
to constitute any similitude, by way
of a constructive performance, to a
rendition of such complete service for
the purposes of the contract as it calls
for on his part. There are some ques-
tionable authorities for holding such
constructive service equivalent to ac-
tual performance, and entitling the
employee to accruing wages, but, as
in all cases of tender, it is necessary,
in order to constitute a substitute for
actual performance, that it should be
maintained, since the employer has a
locus pcenitentice and in avoidance of
questions of responsibility may at any
time, while the tender is preserved,
accept performance.”

‘Tn the present case, the departure
of the plaintiff from the city, and his
absence for the eight weeks in Mary-
land and Virginia, engaged in his own
pursuits, without notice to defendant
of his whereabouts or address or of
being subject to immediate recall, was
not the maintaining of any such ten-
der, nor did it show a case of readi-
ness at all times during the period of
the contract to render the service for
which the plaintiff had contracted.
* * * * * * x OR

“The plaintiff's discharge did not,
asa matter of law, entitle him, on
the expiration of his term of service,
to recover the full price for the whole
period. The defense arising from
his departure for Maryland and his
continued absence at the south, and
his failure after his discharge to
attend at the theater, or to apply for
employment elsewhere, or to main-
tain any continuous offer to perform
were set up by the answer and dis-
tinctly proved. The absence of any
such tender of services, or readiness to
perform for eight weeks after he was
discharged, disentitle him for such
a recovery, for services rendered dur-
ing that period at the contract rate,
as has been awarded him. There has
been much question whether the em-
ployee, unjustly discharged, but ten-
dering performance, may maintain his
Contracts or Hrrre.

the day of trial.’

321

By bringing this action the plaintiff treats the

covenant to hire as still existing, and may recover damages upon it

action on the contract for accruing
wages, or is confined to his single
remedy for damages for the unjust
dismissal, This subject has been most
ably and elaborately examined by
Daty, C. J., in Moody ». Leverich,

decided at the present term (in which .

I concurred), sustaining the latter
view of the law, and that case must
be regarded as settling the question
so far as the court is concerned.
While there may be authorities as-
serting more or less broadly the right
of the employee illegally discharged,
on maintaining tender of his services,
to recover compensation from time to
time, as wages would become due
under the provisions of the contract
(see cases reviewed in Moody v. Leve-
rich), none of them assume to afford
such right of recovery to one who
abandons the sphere of his employment
and adopts other pursuits for his own
profit or pleasure.”

If by his own laches and a neglect
of the duty imposed upon him to use
reasonable diligence to secure em-
ployment elsewhere he suffers the dam-
ages to be enhanced, justice requires
and a sound public policy suggests
that he should bear the loss, and in
obedience to this, it imposes upon
him the burden of making active effort
to find other employment, if it can be
procured by the exercise of reasonable
diligence. But other employment is
meant employment of a character such
as that in which he was employed or
not of a more menial kind. A person
employed as a book-keeper and wrong-
fully discharged would not be obliged
to seek employment as a farm hand,
nor a person employed as an actor to
seek employment as aclerk in a store;
Polk v. Daly, 14 Abb. Pr. (N.S. N.
Y.) 156; Dwieut, C., in Howard »v.
Daly, 61 N. Y. 362; Ross v. Pender;
nor would he be obliged to accept a
situation of a more menial character,
though offered to him by his former
employer; he is only required to en-
gage in service of an equal grade and

' Hochster v. DeLatour, 2 H.& B.678;
Churchward v. The Queen, L. R., 1 Q.

41

character of that from which he was
discharged. A farm laborer, or any
person employed at general labor,
would be bound to seek general work,
but an engineer, a carpenter or per-
son employed in any special depart-
ment of business, would only be re-
quired to seek such employment as is -
within his special line, and as is
equally reputable as that from which
he was discharged. In a Scotch case,
Ross v. Pender, what must be ac-
cepted as the true rule was adopted.
In that case the plaintiff was employed
as head gamekeeper for aterm. The
defendant discharged him from that
position, but offered to retain him as
assistant-gamekeeper at the same
wages. This the plaintiff declined to
accept, and in an action to recover
damages for breach of the contract,
the court leld that the plaintiff was
not bound to accept the offer of the
defendant to take a subordinate or
different position from that for which
he was employed, and that his re-
fusal to accept such position did not
operate to mitigate the damages. But
to the extent of seeking and accept-
ing employment of an equal grade,
the duty is imposed upon him by law,
and he cannot disregard it.

The principal application in all
such cases, whether of contracts or
torts, was admirably illustrated by
that eminent jurist, SaHaw, C. J., ‘n
the case of Lokerv. Damon, 17 Pick.
(Mass.) 284. In that case an action
of trespass quare clausum was brought
for taking away ten rods of the plain-
tiff’s fence, whereby cattle escaped
upon his premises and destroyed the
plaintiff's grass whereby he lost the
profits of his clover from September,
1832, to July, 1833. The fence was
shown to have been removed by the
defendant in November, 1832, and
was not repaired by the defendant
until May, 1833, and the plaintiff
claimed to recover for damages done
by cattle in getting upon his -land
from the time when the fence was _ re-

B. 204, 208; Frost » Knight, L. R.,
7 Ex. 111; 41 L. J. Ex. 78, in Ex. Ch,
322

Contracts or Hirine.

for the period of service up to dismissal; and therefore if the jury
do not give damages for such time, he cannot bring imdebitatus as-

sumpsit afterward.

moved until it was finally repaired by
the plaintiff. Upon the trial the
court below held that the plaintiff
could only recover for the expense
of rebuilding the fence ($1.50), and
could not claim damages for injury
inflicted by cattle upon his premises,
when such damages could have read-
ily been prevented by the exercise of
due diligence on his part in repairing
the fence. The learned chief justice,
in passing upon this question on ap-
peal, said: ‘‘In assessing damages
the direct and immediate consequen-
ces of the injurious act are to be re-
garded, and not remote, speculative
and contingent consequences, which
the injured party might easily have
avoided by his own act. Suppose a
man should enter his neighbor's field
unlawfully and leave the gate open;
if, before the owner knows it, cattle
enter and destroy his crop, the tres-
passer is responsible. But if the
owner sees the gate open and passes
it frequently and willfully, and obsti-
nately, or through gross negligence
leaves it open all summer, and cattle
get in, it is his own folly. So if one
throws a stone and breaks a window,
the cost of repairing the window is
the ordinary measure of damages.
But if the owner suffers the window
to remain a great length of time
without repairing it, after notice of
the fact, and his furniture or pictures
or other valuable articles sustain dam-
age, or the rain beats in and rots
the windows, this damage would be
too remote.” It istrue that this rule
was applied in an action for a tor-
tious act, but it applies with equal
force to injuries arising from a
breach of contract, and in either case
the law imposes upon the injured
party the active duty of making the
damages as light as can be done by
the exercise of reasonable diligence
on his part. Costigan v. Mohawk &
H. R.R. Co., 2 Denio (N. Y.), 609;
Gillis ». Space, 638 Barb. (N. Y.) 177.
In Hamilton v. McPherson, 28 N. Y.

76, the court said: ‘‘The law, for
wise reasons, imposes upon a party,
subjected to injury from a breach of
contract, the active duty of making
reasonable exertion to render the duty
as light as possible. Public interest
and sound morality accord with the
law in demanding this, and if the in-
jured party, through negligence or
willfulness, allows the damages to be
unreasonably enhanced, the increased
loss falls upon him, and he can re-
cover nothing for damages which, by
reasonable diligence upon his part,
could have been prevented. In Dil-
lon v. Anderson, 43 N. Y. 287, this
rule was reiterated by the court. “It
was the duty of the plaintiff,” says the
court, ‘‘as soon as due notice was
given, to have acted so as to save the
defendant from further damages, so
far as was in his power.” Polk».

Daly, 14 Abb. Pr. (N. 8. N.Y.) 156.
Therefore, while if the servant has failed
in reasonable effort to secure other
employment, and it is shown by the
master that he might have secured it,

this will not operate as a complete bar
to his recovery, yet it goes in mitiga-
tion of damages to the extent of what
he might have earned during the
period if he had made such efforts to
secure employment as the law imposes
upon him; Howard v, Daly, ante ;
Costigan v. R. R. Co., ante ; Sherman
v. Trans. Co., ante; and this lack of
effort, or the amount he has actually
earned during the period, may be set

up by the master by way of recoup-

ment or by way of mitigation. Polk
v. Daly, ante. In Huntington 2. The

Ogdensburgh & Lake Champlain R.

R. Co., 33 How. Pr. (N. Y.) 416, the

plaintiff was employed as_ station

agent for the term of one year, at
$100 a month. He was discharged
before the end of his term. He pro-
tested against his discharge, and
offered and was willing to perform his
agreement. Immediately after his-
discharge he found employment ina
brickyard, of which he had the over-

1 Goodman »v. Pocock, 15 Q. B. 576.
Contracts oF Hrrtne.

823

Sec. 278. Contract does not subsist for any collateral purpose.

In such a case, however, though the contract is treated as subsist-
ing for the purpose of suing upon it, it cannot be taken to subsist

sight and charge, and in which he had
an interest. The defendants alleged,
by way of set-off, the value of his
labor to himself and partners, during
the month of June, for the wages
during which he sued, to be $100, and
offered to prove that such was the
value of his labor to himself and
partners during that period. The
court rejected the proof and judg-
ment was rendered for the plaintiff,
which, upon appeal, was reversed, the
court holding that the defendants were
entitled to reduce the plaintiff's claim
by such sums as he earned during that
period. See, also, Shannon v. Com-
stock, 21 Wend. (N. Y.) 462; Costi-
gan 0 M. & H.R. R. Co., 2 Denio
(N. Y.), 616; Heim v. Wolf, 1 E. D.
8. (N. Y.) 70; Hoyt v. Wildfire, 3
Johns. (N. Y.) 518; 11 East, 232.
It is a duty which every party toa
contract, who is entitled to its bene-
fits, owes to the other, to protect him
from loss as far as he can do so by
reasonable exertions, and if he fails to
do so, he fails ina social and moral
duty; Miller ». Mariner's Church, 7
Greenl. (Me.) 55; Taylor v. Read, 4
Paige (N. Y.), 572.

There is some apparent confusion in
the doctrine, both, of the English and
American cases, as to what the real
remedies of a servant wrongfuily dis-
charged, or wrongfully prevented
from performing a contract of service,
are. Formerly there is no question
but that a servant, under such circum-
stances, was regarded as entitled to
hold himself in readiness to perform
his contract, and, being able, ready
and willing to do so, was entitled to
recover his wages for the whole term
upon the ground of constructive ser-
vice. This doctrine had its origin in
a decision rendered by Lord ELLEn-
BOROUGH in a nist prius case tried be-
fore him. Gandell v. Pontigny, 4
Camp. 375. In that case the plain-
tiff was discharged before the termi-
nation of the quarter for which he
was employed, and in an action for
his wages for the entire quarter, Lord
ELLENBOROUGH said that, ‘‘as the

plaintiff had served a part of the
quarter, and was ready and willing to,
serve for the residue, he might, in
contemplation of law, be considered
to have served the whole.” This
doctrine has been adopted in numer-
ous English cases since, which it will
not be profitable to notice here; but
after being repudiated; Archard v.
Hornor, 3 C. & P. 849; Smith v.

Hayward, 7 Ad. & El. 544; and then
again adopted; Aspdin 2. Austin, 5
Q. B. 671 ; it was finally exploded,
and the doctrine established that a
person wrongfully discharged could
not, by simply holding himself in
readiness to perform his contract, be
regarded as having in fact performed
it, and thus be entitled to sue for and
recover his wages for the entire term,
but that he must be restricted in his
recovery to the amount of his actual
loss, Elderton v0. Emmens, 6 Man.

Gr. & 8. 178; Goodman v. Pocock,
15 Q. B. 576; Fewings v. Tisdal, 1
Ex. 298; East Anglian Rys, Co. ».

Lythgoe, 20 L. J. C. P. 87; Wood »v.
Moyes, 1 W. R. 166. The action in
such cases is not for wages, but for
damages for breach of the contract.

Thus, in Wood » Moyes, ante, the
plaintiff was employed as a waiter at
a hotel, by the week. He was dis-
charged after entering upon the third
week, without cause. In an action of
indebitatus assumpsit for the wages for
the third week, it was held that he
could not recover thereon, but that he
should have added a special count for
a breach of the contract.

_ In Hartland v. General Exch. Bank,
14 L.T. (N.S.) 863, the plaintiff
was employed as manager of the de-
fendant bank .for a term of three
years, and was dismissed without
cause, two years before his term ex-
pired. Wuitues, J., in charging the
jury as to the rule of damages in such
cases, instructed them that in such
cases the plaintiff was only entitled
to recover his actual loss, and that
they were not by any means to give
him the amount of his entire wages
for the whole term, or any thing like
324

Contracts oF Hrrine.

for any ulterior or collateral purpose. The plaintiff was engaged to
superintend mines in America for three years, with a stipulation

it, but that the wages were to be re-
duced by what he had actually
earned, and that they were to take in-
to account the probability of his
getting other employment.

In Cameron ». Fletcher, 10 8. (Sc.),
8d Ser., 301, the court say that in all
cases of actions for wrongful dismissal,
the action should not be for wages,
but for damages. Howard »v. Daly,
ante; Poll v. Daly, ante; Moore ».

Leverich, ante; Willoughby ».
Thomas, ante. It cannot with any
propriety be claimed that an

action for wages can be sustained
when the servant has in fact rendered
no service. Such a doctrine isin de-
fiance of the meaning of the term, and
rests upon no solid foundation, either
in principle or policy. Not in princi-
ple, because it conflicts with the doc-
trine that every person injured by the
act of another is bound to use ordinary
diligence to make the burden as light
as possible, and therefore is bound not
to hold himself in readiness to perform
the contract, but to use reasonable
effort to secure other employment;
Howard ». Daly, 61 N. Y, 362; not in
accordance with sound public policy,
because it encourages indolence, and,
in the language of Parke, B., Em-
mens v. Elderton, ante, “such a doc-
trine, if sanctioned, would be of per-
nicious consequences.” The true rule,
which is generally adopted in this
country, is, as previously stated, that
such actions must be for damages for
a breach of the contract, and that,
while prima facie the contract price is
the measure of recovery, yet this is
subject to diminution, not only by
whatever sums the plaintiff may have
actually earned during the period for
which damages are claimed, but also
by whatever sums he might have
earned if he had used reasonable dili-
gence in seeking other employment.
In Massey ». Taylor, 5 Cold. (Tenn.)
447, the plaintiff was employed as a
clerk in the defendant’s store for one
year, at a salary of $40 a month.
During the term he was discharged
by the defendant for embezzlement,
tried and acquitted. In an action for
a breach of his contract it was held

that he was entitled to recover what
his services were really worth during
the term of his employment, not ex-
ceeding the contract price. In Whit-
aker ». Sandifer, 1 Duv. (Ky.) 261,
and in Chamberlin v. McCallister, 6
Dana (Ky.), 352, it was held that will-
ingness to perform, after a wrongful
discharge, is not equivalent to full per-
formance, and that the servant is only
entitled to recover the actual damages
he sustains for the disappointment
and loss of equally profitable employ-
ment. In Miller o. Goddard, 34 Me. 102,
it was held that in case of the wrong-
ful discharge of a servant, he may re-
cover all the damages he has sus-
tained by a breach of the contract, not
exceeding the contract price. In Ricks
v. Yates, 5 Ind. 115, in an action for
wrongful dismissal, it was held that
the servant could recover the value of
his services up to the time of his dis-
missal, and the damages he sustains
from being prevented from performing
his contract. The action is for dam-
ages for being prevented from perform-
ing, and not for actual performance;
and, while prima facie the amount
of wages is the measure of recovery,
yet this is subject to the condition
that the servant has earned nothing
elsewhere, and has been unable, by
due diligence, to obtain other employ-
ment; and these facts may always be
shown in mitigation. Jones v. Jones,
2 Swan (Tenn.), 605; Walworth 0.
Pool, 9 Ark. 394; King v. Steiren, 44
Penn. St. 99; Costigan v. Mohawk,
etc., R. R. C., ante.

In Howard »v. Daly, 61 N. Y. 362,
Dwicut, Commissioner, in a very able
opinion, reviewed the cases and elim-
inated the doctrine applicable in such
actions, and actions for a breach of
contract, by refusing to take a servant
into service when a valid contract for
a term has been entered into. In that
case the plaintiff contracted with the
defendant to act at the Fifth avenue
theater, in New York, or at such other
places as he might require, in such
capacity, and in such way and manner
as he might direct, and under such
rules as he might establish for the
coming season, to commence Septem-
Conrracts or H1rine.

825

that he should not be dismissed without a year’s notice, or a year’s
salary, and that if he stayed at the mines three years, he should have

ber 15th, 1870, and terminate about
July 1st, 1871. The plaintiff reported
for rehearsal in due season, and some
time before the season opened, but
was not assigned any part, or allowed
to take part in the performance, as
was agreed by the defendant, although
she was at all times ready and willing
so to do, and was prevented by the de-
fendant and his servants from doing
so. The defendant answered, denying
generally the allegations of the com-
plaint. The case was tried before a
referee, who found the facts as al-
leged in the plaintiff's complaint, and
reported in her favor for $410, the
full amount of her salary for the
term. It was not shown by the de-
fendant, nor did it appear in evidence,
that the plaintiff had been lacking in
diligence in seeking employment else-
where. Upon appeal, it was held that
the judgment was right, because pri-
ma facie the measure of recovery in
such cases is the contract price for the
term, and that, if the defendant would
reduce the recovery, he must show
that the plaintiff has earned some
wages during the term, or might have
done so by exercising proper diligence
in seeking other employment.

He can recover only his actual loss,
Willoughby v. Thomas, 24 Gratt. (Va.)
521; Moody v. Leverich, ante; Howard
v. Daly, ante, and in arriving at that the
jury, in the language of Lord Camp-
BELL, Hochester v. De La Tour, 2 El.
& Bi. 678, are ‘to look at all that
happened, or was likely to happen, to
increase or mitigate the loss of the
plaintiff, down to the time of trial.”
This embraces as damages, in this form
of action, not only all the wages
earned up to the time of his discharge,
but also all his damages, real or pro-
spective, from such breach. Moyes v.
Wood, ante; Smith »v. Thompson,
8 C. B. 44; Clossman v. Lacoste,
28 Eng. L. & Eq. 140; French »o.
Brookes, 6 Bing. 354; Goodman v.

‘Pocock, ante; Emmens ». Elderton, 4
H. L. Cas. 624; Dillon », Anderson,
43 N. Y. 231; Hamilton v. McPher-
son, 28 id. 76; Moody ». Leverich,
ante ; Howard v. Daly, ante; Polk v.
Daly, ante; King v. Steiren, ante ;

Walworth v. Pool, ante; Costigan v.
Mohawk, etc., R. R. Co., ante; Britt
». Hays, 21 Ga. 157; Rogers v. Par-
ham, 8 id. 190; Ricks v. Yates, ante ;
Sherman 2. Champlain Trans. Co., 31
Vt. 262.

Where there has been a practical
performance, as where the servant’s
whole time is not due under the con-
tract and he is absolutely prevented
from performing, and is only bound
to perform when required to do so, if
he is not called upon to perform, and
holds himself in readiness to do so at
any time during the term, he may
recover his wages for the entire
period. Thus in Jones v. Graham, 21
Ala. 654, the plaintiff was appointed
by the inspectors physician to the
State penitentiary, and was only re-
movable by them. The penitentiary
was leased to the defendants, who
were required to pay the physician.
The plaintiff was refused admittance
to the prison by them, and the court
held that, under these circumstances,
they were liable to pay him his entire
salary. So in Thompson v, Society in
Rehoboth, 5 Pick. (Mass.) 469, the
plaintiff was employed as pastor of
the defendant Society for a term. His
parishioners, without good cause, pre-
vented his use of the meeting-house,
and he preached in private houses
during the balance of his term to such
as pleased to hear him, and it was
held that under these circumstances
there was a practical performance, and
an action for his wages would be
maintained.

In Willoughby ». Thomas, 24 Gratt.
(Va.) 524, the court expressly repudi-
ated the doctrine expressed in Byrd v.
Boyd, 4 McCord (8. C.), 246, that the
servant could hold himself in readi-
ness to perform during the balance of
the term and recover for wages, and
laid down the rule broadly that the
action should be for damages for
breach of the contract and being pre-
vented from earning his wages, and
thatthe measure of his recovery was
the actual damages he had sustained not
exceeding the contract price, Clark ».
Marsiglia, 1 Den. (N. Y.) 317; Beckham
vo. Drake, 2 H. L. Ca. 606. So where he
826 Contracts

the expenses of his family defrayed on their return.

or Hrrine.

He was dis-

missed in eighteen months after his arrival, without either a year’s

has been unable, by the exercise of
reasonable diligence, to obtain other
employment, under the rule that he
may recover his actual loss, the
measure of recovery is the wages he
would have received if he had been
permitted to perform under the con-
tract; Howard v. Daly, ante; Britt v.
Hays, 21 Ga. 157; Jones . Graham, 21
Ala. 654; Colburn ». Woodworth, 31
Barb. (N. Y.) 381; Massey ». Taylor,
5 Coldw. (Tenn.) 447; Byrd o. Boyd,
4 McCord (S. C.), 246; Nations o.
Cudd, 22 Tex. 550; Stewart v. Walker,
14 Penn. St. 293; Clossman o. Lacoste,
28 E. L. & Eq. 140; Smith v. Thomp-
son, 8 C. B. 44; Goodman ». Pocock,
15 Q. B. 576; French v. Brooke, 4
M. & P. 11; and if in addition to the
regular wages he was to have an ulti-
mate benefit from the business, as in
the case of an overseer to a planter,
one-fourth the crop, he is entitled, in
addition to his money wages, to re-
cover the value of one-fourth the
crop. Clancey v. Robertson, 2 Mill
(S. C.), 404. Where the contract
provides that the service may be put
an end to by notice of a week, month
or other period, in case the servant is
discharged without such notice, the
measure of recovery will be the
amount of wages for such period, as,
if the notice had been given and the
servant retained for that period, that
would have been the extent of the ad-
vantage derived by him, and if the
master elects to pay him the wages
during the period of notice in lieu of
retaining him, he may do so, Hartley
v. Harman, 11 Ad. & El. 798. | But
in general the amount of damage a
servant may recover must depend
upon the contract, the wages to be
received under it, and his actual loss
therefrom. Willoughby v. Thomas,
24 Gratt. (Va.) 524; Costigan .
Mohawk, etc., R. R. Co., 2 Den. (N.
Y.) 609; Howard v. Daly, 61 N. Y.
362. If the action is brought at once
upon dismissal, the question is en-
tirely for the jury, in view of the con-
tract, the unexpired term, and the
probabilities of his being able to
secure other equally profitable em-

ployment, and they may give such
sum as, in view of all these circum-
stances, they think will make him
whole, not exceeding the amount of
unearned wages. In Smith v. Thomp-
son, 8 C. B. 44, a clerk hired for
two years, being wrongfully dismissed
during the first quarter, was awarded
one year’s salary and the court refused
to disturb the verdict. French v.
Brooke, 4 M. & P. 11.

The doctrine of the American cases
limits the servant’s recovery to his ac-
tual loss up to the time of trial; Fowler
vy, Armour, 24 Ala. 194; McDaniel v.
Park, 19 Ark. 671; Rogers v. Par-
ham, 8 Ga. 190; and it would be an
unsafe experiment in a case where
there is a prospect of any considerable
loss of time to bring an action before
the period of service has expired, as
there can be only one action for dam-
ages, under any circumstances. Col-
burn v, Woodworth, 31 Barb. (N. Y.)
881; Booge v. Pacific R. R. Co., 33
Mo. 212; Emery v. Webster, 21 L. T.
169. Ithas been held in some cases,
not regarded as authoritative, that
where the wages are payable at
stated periods, as weekly, monthly, or
quarterly, a servant wrongfully dis-
charged may bring an action for each
installment of wages, as they become
due, recovering the wages, less the
amount he has earned, or what he
reasonably might have earned in the
meantime. Huntington v. Ogdens-
burgh R. R. Co., 33 How. Pr. (N.
Y.) 416; 7 Am. L. Reg. (N.8.) 148;
Thompson v. Wood, 1 Hilt. (N. Y. C.
P.) 96; Fowler ». Armour, 24 Ala.
194. But the doctrine of these cases
has been directly disapproved “by the
court of appeals of the State of New
York. Howard 2. Daly, 61 N. Y. 362.

In the case last referred to, Dwicut,
C., in commenting upon the docrine
that a servant wrongfully discharged
could sue for wages upon the
ground of constructive service, after
his discharge, said: “This doctrine
is, however, so opposed to principle,
so clearly hostile to the great mass of
authority, and so wholly irreconcil-
able to that great and beneficent rule
Contracts oF Hririne. 827

notice or salary. It was held that, although the contract has not
been determined, in the only mode agreed on, it could not be con-
sidered as subsisting for the whole time originally contemplated, so
as to entitle him to his third year’s salary, and the expenses of his
family on their return.!

Sec. 279. Measure of damages.

The measure of damages in this action is the actual loss incurred,
which may be much less than the wages for the unexpired period of
service, where another employment may be easily obtained.” Where,
on a yearly hiring, the plaintiff is dismissed before the termination
of the engagement, he is *generally given his salary up to the
end of the cirrent year.* Where the contract was for two
years, with a fixed salary and half profits, and the plaintiff was dis-
missed at the end of four months and a half, the jury gave him a
year’s salary, and his share of the profits for twelve months, which
was held not to be excessive.‘ No allowance can be made in the
nature of pretiwm affectionis, nor any reference to any pain that

[*198]

of law, that a person discharged from
service must not remain idle, but
must accept employment elsewhere
if offered, that we cannot accept it.
If a persom discharged from service
may recover wages, or treat the con-
tract as still subsisting, then he must
remain idle in order to be always
ready to perform the service. How
absurd it would be that one rule of
law should call upon him to accept
other employment, while another rule
required him to remain idle in order
that he may recover full wages. The
doctrine of ‘ constructive service’ is
not only at war with principle but
with the rules of political economy,
as it encourages idleness and gives
compensation to men who fold their

1 French v. Brookes, 6 Bingh. 354.

° Elderton v. Emmens, 6 C. B. 178;
13 id. 495; 4 H. L. Ca. 625; Good-
man v. Pocock, 15 Q.B. 583, per ERLE,
J

3 Beeston v. Collyer, 4 Bingh. 309;
Down ». Pinto, 9 Exch. 327.

4 Smith v. Thompson, 8 C. B. 44.
In winding up companies the compen-
sation to managers engaged for a term

arms and decline service, equal to

those who perform, with willing
hand, their stipulated amount of
labor. Though the master has com-

mitted a wrong, the servant is not for
one moment released from the rule
that he should labor, and no rule can
be sound which gives him wages
while he remains in voluntary idle-
ness. For these reasons, if the plain-
tiff was discharged after the term of
service commenced, she had an im-
mediate cause of action for damages,
which were prima facie a sum equal
to the stipulated amount, unless the
defendant gave evidence in mitigation
of damages.”

See Wood’s Law of Master and
Servant, pp. 237-252.

has been calculated upon the principle
of ascertaining the present value of an
annuity of a sum equal to the full sal-
ary for the unexpired term, having re-
gard to the risk to health and life,
and making a deduction for the
liberty of obtaining fresh appoint-
ments, Yelland’s case, L. R., 4 Hq.
350; Ex parte Clark, L. R., 7 Eq. 550.
828 Contracts oF Hrerme.

might be felt by the plaintiff, on the ground that he was attached to
the place.!

A right of action for this cause passes to assignees in bankruptcy,
since the injury to the personal estate is the primary and substantial
cause of action.’

On the other hand, the plaintiff may treat the contract as rescinded
and sue at once for the time he has actually served. In this form of
action he cannot recover any thing more than wages for such time.’
And under non-assumpsit, the defendant may give in evidence the
worthlessness of his services, and the jury may give damages accord-

ingly.*

Sec. 280. Doctrine of constructive service.

It has been held that a servant, improperly dismissed in the middle
of his time, might wait till the period had expired, and then sue in
indebitatus asswmpsit for the whole period, on the doctrine of con-
structive service.’ That doctrine, however, after being severely com-
mented upon in Smith v. Hayward,’ seems to have been tacitly over-
ruled by the Exchequer Chamber in Elderton v. Emmens,’ and ex-
pressly by Parrrson, J., and Erzx, J.,in Goodman v. Pocock.’ The
199] *two alternatives previously mentioned are therefore the only

ones open.

Sec. 281. Menial servants.

In the case of a menial servant, usage has established the right to
dismiss them at any time, by giving them a month’s notice ora
month’s wages.’ A head-gardener, living within the demesne, at a
salary of 1007. a year, was held to be a menial within this rule,’ and
so was a huntsman, though hired at yearly wages, and with the right
to receive perquisites which could not be fully received till the end

1 Per Hrun, C. J., Beckham ». * Gandell v. Pontigny, 4 Camp. 375;
Drake, 2 H. L. Ca. 607. Collins v. Price, 5 Bingh. 132; Sinith
? Drake », Beckman, 11 M. & W. o. Kingsford, 3 Sco. 279.
815; 2 H. L. Ca. 579; reversing 67 A. GE. 644,
Beckham o. Drake, 8 M. & W. 846. "6 C. B. 160, 178; 4H. L. Ca. 625.
8 Archard », Hornor, 3C.&P.349;  °15 Q.B.576. See2Sm.L. C. 45,
Smith », Hayward, 7 Ad. & E. 544; ‘th ed. ;
Broxham v, Wagstaffe, 5 Jur. 845. * Boxham v. Wagstaffe, 5 Jur. 845.
‘Baillie » Kell, 4 Bingh. N. C. . Nowlan o. Ablett,2 O.M. & R.
638. 54,
Contracts oF Hrrine. 329

of the year;' but not a warehouseman,’ nor a clerk,’ nor a gov-
erness.*

Sec. 282. Actions for dismissing without due notice.

Where a menial, or other person, whose service is of this nature,
viz., determinable by a month’s notice or wages, is dismissed with-
out either, the declaration must be special for not giving notice.*
This, however, is quite different from the case of a contract to em-
ploy for a specific time, and a breach of it by improper dismissal.
In the latter case, as we have seen,’ the declaration must be for
breach of the entire agreement to hire, and the damages must be
given, not only for the time which has been served, but for that
which has not. But in the former case, the declaration is only for
breach of the particular point as to notice. The damages for this
are liquidated, viz., one month’s wages;‘ and the plaintiff may
either recover ina separate count, or a separate action, for the bygone
service.”

,

Sec, 283. Salary now apportionable by statute.

By the Apportionment Act, 1870, 33 & 34 Vict., ch. 35, salaries
have been made apportionable.’

! Nicoll v. Greaves, 17 ©. B. (N. 8.)

"Fewings v. Tindal; French ».
27; 838 L. J.C. P. 259.

Brookes, 6 Bingh. 354.

> Fawcett 7 Cash, 5 B. & Ad. 904.

3 Fairman ». Oakford, 5 H. & N.
635; 29 L. J. Ex. 459; Beeston v.
Collyer, 4 Bingh. 309.

4 Todd». Kerrich, 8 Exch. 151; 22
L. J. Ex. 1. i

5 Fewings v. Tisdal, 1 Exch. 295;
overruling Eardley v. Price, 2 B. &
P. N. R. 333.

6 Ante, p. 316.

42

8 Hartley o. Harman, 11 A. & E.
798; affirmed Goodman». Pocock, 15
Q. B. 580.

® See sections 1 and 2, cited at length
post, p. 859. By section 5, the word
‘“Cannuities” includes salaries and
pensions. Salaries had been held not
tocome within the Apportionment Act,
4 & 5 Wm. IV, ch. 22, § 2; Lowndes
v. Earl of Stamford and Warrington,
18 Q. B. 425; 21L. J. Q. B. 371,
330 Nominat Damaces in Dept.

[*200] *CHAPTER XIII

DEBT.

Szc. 284. Damages in debt nominal in general.

285. Interest.

286, Action cannot be commenced for nominal damage debt.

287. Case where payment since action brought.

288. Harner v. Denham.

289. Cook v. Hopewell.

290. Release after action brought.

291. Tender, penalty, liquidated damages, provision of atatute, 8 &
9 Wm. III, chap. 11.

292. Relief against penalty in bond.

293. How judgment to be entered.

294. Mode of suing for breach of covenant.

295. To what cases the statute extends.

296. When it does not apply. Cases to which the statute applies.

297. No more than amount of penalty and costs can be recovered on
bond.

298. When plaintiff is not forced to sue for penalty.

299. Liquidated damages.

800. Value of sum in foreign currency.

Sec. 284. Damages in debt nominal in general.

The damages in an action of debt are in general merely nominal
for its detention,’ though the jury may give substantial damages if
they think fit.” In some cases, however, the damages for detention
may form a very important part of the claim; as, for instance, in
debt on a mortgage deed, where the principal and interest are to be
paid on a given day, the interest after that day can only be re-
covered as damages. Accordingly a plea which only answers the
debt, and not the damages, is bad;* but if it professes to be an
answer to “the causes of action,” it will be sufficient, even though
pleaded to particular special counts, while the damages are laid as a
separate sum at the end of the declaration. For each count must
be read with so much of the damages as are applicable to it.‘

1 Wilde ». Clarkson, 6 T. R. 304. * Lowe v. Steel, 15 M. & W. 380;
2 Per Lord Astnenr, C.B., Henry Ash v. Pouppeville, L. R., 3 Q. B. 86;
v. Earl, 8 M. & W. 238, 87 L. J. Q. B. 5

4 Gell v. Bice 7 C. B. 16.
Nomina Damaces ww Dezsr. 331

Sec. 285. Interest.

We have seen in what cases interest is given as a matter of law.!
And by 3 & 4 Wm. IV, ch. 42, § 28, upon all debts payable at a cer-
tain time or otherwise, the jury may, if they think fit, give the
current interest as damages from the time of payment, if payable
by written agreement at a certain time; if otherwise, then from
demand of payment in writing, if notice is given that. interest
would be claimed.’

Where a plaintiff has actually received payment of the debt,
*he cannot commence an action for nominal damages.’ [#201]

Sec. 286. Action cannot be commenced for nominal damages in debt.

If the plaintiff means to demand further damages as interest, he
ought not to receive the principal.* But when he has commenced
an action, if the debt is paid during the course of it, he may pro-
ceed for nominal damages to entitle him to costs.°. And in such a
case the verdict should be entered for the whole sum due and paid
since action brought, with 1s. damages, and if execution is issued
for more than the 1s. damages and costs, the defendant’s course is
to apply to the court for relief.

Sec. 287. Case where payment since action brought,

But where the payment has been made after action, and the
plaintiff has either waived or accented damages for its detention, he
can have no further claim for damages, and cannot proceed for
costs, which only arise out of damages. An action was brought on
a cheque for 25/. Defendant after action commenced paid the
amount, and offered 17. for expenses, which plaintiff refused, saying
he would pay them himself. Held, that the jury was right in enter-
ing verdict for defendant when the action was continued.’ Lord

1 Ante, p. 214.

? See ante, p. 230.

3 Beaumont v. Greathead, 2 C. B.
494; and see, per WILLES, J., Tetley
0. Wanless, L. R., 2 Ex. 280; 36 L.
J. Ex. Ch. 156.

4 Dixon v, Parkes, 1 Esp. 110.

* Nosotti v. Page, 10 C. B. 643;
Goodwin ». Cremer, 18 Q. B. 757;
Kemp ». Balls, 10 Ex. 607. Nominal
damages are not given in debt, upon
default. The judgment must be for

the debt and costs, and nothing more;
People v. Hallett, 4 Cow. (N. Y.) 67;
but the plaintiff may recover Jess than
the amount ciaimed in his complaint;
Mayor, etc., v. Butler, 1, Barb. (N. Y.)
825; but in order that such a judg-
moent may be given, the cause therefor
must appear. Hughes v. Union Ins.
Co., 8 Wheat. (U. 8.) 294.

6 Nosotti v. Page, 10 C. B. 643.

7™Thame v. Boast, 12 Q. B. 808.
332 Nommat Damaces 1n Dest.

Denman seems to put this on the ground that, after the debt was
paid, the plaintiff could not proceed for merely nominal damages.
This, however, is contrary to Nosotti v. Page. It would seem that
the real ground of the decision was, that the sum was accepted in
satisfaction, not only of the debt, but of all damages and costs aris-
ing from its detention, as will be seen from the argument and
observations of Eruz, J... Consequently, there were no damages
to proceed for.

Sec. 288. Horner v. Denham.

Action for 207. for use and occupation: pleas, Ist, except as to
121., nunquam indebitatus ; Ind, as to 112. parcel of the 12/., in bar
of further maintenance, payment of 11/., after writ and before
deciaration, in satisfaction thereof and all causes of action in respect
thereof ; 3d, as to 12. payment into court. Plaintiff joined issue on
[209] 1st and 2d pleas, and took money *out of court on 3d. It ©

appeared on trial that the debt had never exceeded 12/., and
that after the writ had issued, but before plaintiff or defendant
knew of it, plaintiff received the 117. mentioned in 2d plea. Plain-
tiff contended, that, as he did not know that costs had been incurred,
he could not have received the 110. in satisfaction of the causes of
action, one of which was the costs to which he was not aware that
he was entitled. The judge directed 1s. damages to be entered.
Held wrong. As to 1st plea, the verdict plainly ought to be entered
for the defendant. As to 2d, the evidence proved that he had
accepted 11/. in satisfaction of it. And as to the costs arising from
the action to recover it, these were exactly the same costs as the
plaintiff was entitled to recover on taking the money ont of court.
Consequently, no more damages could be recovered under the 2d
count than those which were actually paid for.under the 3d count.
Verdict was entered on the general issue for defendant ; damages
were struck out, and posted to defendant.” This decision seems to
have gone on the ground that the only damage caused by the deten-
tion of the 112. was the cost of suing for it. If so, as such cost was

11d. 813; and in Goodwin». Cremer, R., 2 Ex. 280; 36 L. J. Ex, 156, in
18Q. B. 761. See, also, as toits being Ex.Ch. To debt on a bond, a plea of
a question of fact whether the pay- general performance, is good. Dawes
ment is made on account of the debt ». Gooch, 8 Mass. 488.
only, or of debt and damages, per * Horner v. Denham, 12 Q. B. 818, n.
Wiuusrs, J., in Tetley ». Wanless, L..
Nominan Damaces in Dust. 383

received by the plaintiff on the 3d plea,! the damage was exhausted,
and there was no further cause of action. But it seems pretty clear
that there was a nominal damage caused by the detention, for
which, when the action had once commenced, the plaintiff could
continue it,” unless this damage had itself been satisfied by the pay-
ment of 11/., as in Thame v. Boast. This was quite distinct from
the costs of suit. Perhaps, however, the explanation is, that such
nominal damage is only a fiction, maintained to enable the plaintiff
to get his costs ; and as these were provided for under the 3d count,
the result of maintaining the fiction would have been to give him
the costs of carrying out an action beyond its necessary limits.

Sec. 289. Cook v. Hopewell.

In a later case the action was for goods sold. Plea, except as to
22). 8s. 3d. never indebted, and as to that sum payment after action
brought of 227. 8s. 3d. to the plaintiff, who accepted it in satisfac-
tion of the said claim of 220. 8s. 3d., and of *all damages
accrued in respect thereof. At the trial the plaintiff offered
no evidence on the first issue, and defendant proved payment of
the sum alleged to the plaintiff, who accepted ‘it, no mention being
made of costs. The judge was of opinion that the plaintiff ought
to have confessed the plea, and taken his costs under Reg. Gen. T.
T. 1853, pl. 22, and ordered a verdict for the defendant, with leave
to move to enter nominal damages. The court held that the plain-
tiff was entitled to judgment in his favor, for that the plea was not
proved, unless the defendant showed, either that the plaintiff con-
sented to accept the 227. 8s. 3d. in satisfaction of the debt, damages,
and costs, or that the costs were paid. Bramwztt, B., said, “ With
respect to the 22d Pl. rule, I will only add that it never could have
been the intention of its framers that the rule should alter the law,
and make a plea true which was not so before, but only that a plain-
tiff might have an opportunity of confessing a plea containing
matter of defense arising after action brought. The case of Beau-
mont v. Greathead merely amounts to this, that nominal damages
are inappreciable when they do’ not increase the actual claim. In

[*203]

"Rumbelow »v. Whalley, 16 Q. B. 2 Nosotti v. Page, 10 C. B. 643.
397.
834 Nommuat Damages iw Dest.

the case of Thame v. Boast, all that the court decided was, that, in
point of fact, the money was paid and received in satisfaction of
both debt and damages, and the question was not discussed whether
it could be a satisfaction in. point of law.”! It is curious that
Horner v. Denham was not cited on either side, as it seems exactly
in point. There the court seem to have thought, as the judge did
here, that as all the costs incurred by the plaintiff at the time the
payment was made were offered to him by the plea, he had no
right to go on, unless he claimed something more than merely these
costs. This certainly seems justice; whether it is law is another
matter.”

Sec. 290. Release after action brought.

In a later case in an action of debt, the defendant pleaded
*to the further maintenance of the action a composition
deed executed by a statutory majority of his creditors,
under the Bankruptcy Act 1861, containing a release of “all
actions, suits, debts, claims or demands,” which the creditors had or
had had against the defendant, and ari acceptance of the stipulated
composition in full satisfaction of the several sums of money owing
tothem. The action was commenced before the execution of the
deed. A verdict having been entered for the defendant, and a
rule to enter it for the plaintiff and for judgment non obstante
veredicto having been discharged by the court of exchequer, it was
argued in the exchequer chamber that the effect of a release after
action brought of a debt which was the cause of action was only to
‘discharge the debt itself, subject to the creditor’s right to go on with
the action to obtain a judgment for nominal damages, to which
judgment the law would annex costs. The court of exchequer
chamber gave judgment for the defendant, considering that the

[*204]

'Cook v. Hopewell, 11 Exch. 555,
559.

*In Tetley v. Wanless, post, p. 335,
a difficulty was raised in argument
which does not appear to have been
felt by Wieutman, J., who tried Cook
v. Hopewell, viz., that the rule in
question (Rule 22, Trin. Term, 1853,)
in terms only applied to cases where a
plea containing a defense arising after

the commencement of the action was
pleaded, together with pleas of de-
fenses arising before the commence-
ment of the action. The rule did not
in terms provide that a plaintiff might
confess such a plea, and thereupon be

entitled to his costs up to the time of |

pleading, when such a plea was
pleaded alone. No judgment was
given upon this point,

ae
Aotions oF Dest. 835

release being of all “actions, suits, debts, claims or demands,” the
debt and action were both gone.!

Sec. 291. Tender. Penalty. Liquidated damages.
& 9 W. IL, ch. 11.

As a plea of tender alleges that the defendant has been ready to
pay at all times, if the plea is found for the defendant, the plaintiff
cannot obtain any damages, because there has been no detention of
the debt.”

As to damages in debt for a penalty given by statute, see ante,
p. 2.

As to the cases in which a penalty may be recovered as liquidated
damages, see ante, p. 204.

In debt upon a bond for performance of covenants, conditions,
etc., the plaintiff formerly not only had judgment, but was enti-
tled to take out execution for the whole penalty, together with
his costs, without any regard to the amount of damage he had
suffered.°

Provisions of statute 8

Sec. 292. Relief against penalty in bond.

But now by 8 & 9 Wm. III, ch. 11, § 8,‘ it is enacted that
*in all actions in any court of record upon any bond, or on [#205]
any penal sum, for non-performance of any covenants or
agreements, contained in any indenture, deed, or writing, the
plaintiff may assign as many breaches as he shall think fit; and the
jury shall assess not only such damages and costs as were thereto-
fore usually done, but also damages for such of the breaches as the
plaintiff shall prove to have been broken, and the like judgment
shall be entered on such verdict as theretofore was usually done.
And if judgment shall be given for the plaintiff on demurrer, or by
confession, or nz dicit, the plaintiff may suggest on the roll as

1Tetley v. Wanless, L. R., 2 Ex.
21; 86 L. J. Ex. 25; affirmed L. R.,
2 Ex. 275; 36 L. J. Hx. 158. The
plea was, in the first instance, pleaded
in bar, but the court of exchequer
amended it by making it a plea to the
further maintenance of the action.

? Birks». Trippet, 1 W. Saund. 33
d; 1 Wms. Notes to Saund. 42.

31 W. Saund. 57, n. 1; 1 Wms.
Notes to Saund. 67, n. 1.

4See as to the operation of this en-
actment, per BRAMWELL, B.; Betts v.
Burch, 4 H. &N. 506; 28L. J. Ex.
267, where he pointed out, that it was
under this statute that a court of com-
mon law was able to relieve against a
penalty.
336 Actions or Dest.

many breaches as he shall think fit, which shall be inquired into by a
jury summoned to appear before the sheriff... After the damages
assessed and costs have been satisfied, either before or after execu-
tion, a stay of execution is to be entered on the record; but the
judgment shall notwithstanding remain as a further security for
future breaches. This statute is compulsory in all cases to which it
applies. Therefore when the plaintiff has judgment on verdict, or
on demurrer, or by default, he must have the damages assessed by a
jury, otherwise, the verdict in the former case will be erroneous, and
a venire de novo awarded ; or, in the latter case, the execution will
be set aside.*

Sec 193. How judgement to be entered.

“ The like judgment,” however, “shall be entered on such ver-
dict as heretofore hath been done.” Therefore, at the trial, the
jury must find a verdict for the plaintiff with 1s. damages and 40s.
costs, as before. And the judgment is to recover the debt, 2. ¢., the
penalty, and 1s. damages, for detention, and 40s. costs; together
with the costs of increase, which include, of course, the costs of
trial.°

‘Where breaches are assigned, whether in the declaration or
[*206] *in the replication, the jury who try the cause may assess

13 &4 Wm. IV, ch. 42, § 16.
° Drage v. Brand, 2 Wils. 377;
Hardy ». Bern, 5 T. R. 540, 636; Roles

21 Ill. 31. A judgment in debt, how-
ever, for a specified sum will not be
set aside because the word debt is not

v. Rosewell, 5 T. R. 538; Walcot ».
Goulding, 8 id, 126; overruling
Walker ». Priestly, Com. Rep. 376;
Dry ». Bond, Bull. N.P 164. The
provisions of the statute cannot be
waived by agreement between the
parties. Montgomery v. Byrne, 2 Ir.
C. L. R. 2380.

§ Judgment cannot be entered for
damages merely in debt; Chapman v.
Wright, 20 Ill. 120; and a general
judgment for the principal and in-
terest of a debt is erroneous. The
judgment should specify what portion
is debt, and what is damages; Pulliam
v. Pencenneau, 23 Ill. 98, but the rule
is otherwise where the finding is for
only part of the debt due upon which
judgment is rendered. In such a case
it is all debt. Lucas». Farrington,

used; Tindallv. Tindall, 18 N.J. L.
487; nor will the mere fact that the
word debt is used in a judgment make
it a judgment in debt. Foster o.
Jared, 12 Ill. 451; 1 W. Saund. 58,d;.
1 Wms. Notes to Saund. 75. The
writ of execution, if sued out, must
be for the entire penalty, damages and
costs; but it must be indorsed to levy
only the damages assessed for the
breaches, the costs found by the jury
and the costs of increase, and the
costs of execution. If the damages
assessed and the charge of execution
exceed the penalty of the bond, the
execution must be only for the amount
of the penalty and costs of increase.
1 W. Saund, 58, e; 1 Wms. Notes to
Saund. 77; 1 Chitty’s Arch. Pr. 611,
12th ed.
Actions or Dzst. 337

the damages without a special venire ad inguirendum. But
where they are suggested, a special venire is necessary.'

Sec. 294, Mode of suing for breach of covenant.

The plaintiff may choose any of the following alternatives in
suing. He may state the condition of the bond in his declaration,’
and assign several breaches under the statute.

He may declare on the bond generally. In this case, if defend-
ant suffer judgment by confession or nz dicit, or the plaintiff have
judgment on demurrer, breaches may be suggested.

Or the defendant may plead to the declaration. If his plea be
one to which the plaintiff might reply at common law, without
assigning breaches, as non est factum, covin, he may do so, and
enter a distinct and separate suggestion of breaches under the
statute, whether before or after judgment ;* but he cannot join an
issue to a plea, and a fresh suggestion in the same replication.’

If the defendant plead so as that the plaintiff must have assigned
a breach at common law, e. g., general performance, the plaintiff
must assign breaches still, but may, by virtue of the statute, assign
several.*

Where the plaintiff does not assign damages at first, and the de-
fendant, setting out the conditions, pleads performance to part and
excuse for the residue, “then as to the part of the condition as to
which performance is pleaded, the plaintiff may assign one or more
breaches; but as to the part of which performance is not pleaded,
but is excused, there must be a suggestion; or if the matter of ex-
cuse is traversed, then there must be no assignment but a suggestion
of breaches, the truth of which, without any issue, must be tried
with a view to *ascertain the amount of damages if the is-_,

‘ er ._ [*207]
sue on the traverse is found for the plaintiff, otherwise
not.” °

‘1 Parkins v. Hawkshaw, 2 Stark. 239; “De La Rue». Stewart, 5 B. & P.
Quin vo. King, 1M. & W.42;Scott ». 362.

Staley, 4 Bing. N. C. 724. 5 Plomer v. Ross, 5 Taunt. 386.

2? It has been thought necessary to * ParRKE, B., Webb v. James, 8 M.
alter the phraseology of the old sys- & W. 645, 658. See 2 W. Saund.
tem of pleading in this chapter. 187, a, et seq.

3 Ethersey v. Jackson, 8 T. R. 255;

Homfray v. Rigby, 5 M. & §. 60.

43
338 Actions oF Dest.

Sec. 295. To what cases the statute extends.

This statute extends to all bonds and deeds for the performance
of covenants or payment of money, which are of a divisible nature, *
and capable of only a partial breach; or from the violation of which,
only part of the damage guarded against may arise. It includes,
therefore, bonds for the payment of money by installments ;* for
the payment of an annuity;’ for the performance of an award ;°
and where a bond is conditioned for the payment of a single sum,
and also for the performance of other covenants, breaches must be
assigned, though the action is merely brought to recover the single
sum, for which purpose it is like a common money bond ;* for in
all such cases, as the plaintiff would have been entitled at law to
issue execution to the full amount of his judgment, the defendant
would have been forced to an expensive remedy in equity.

And it applies equally whether the covenants, etc., are contained
in the same deed or writing, or in a different one.’

Sec. 296. When it does not apply. Cases to which the statute applies.

The statute does not extend to bail-bonds,’ nor replevin bonds,’
because the court can give such relief as a court of equity could, and
the form of the bond ascertains the value of the thing which it is
taken to secure ;° nor to actions by assignee of a bond, given to the
lord chancellor by a petitioning creditor, on suing out a commission
of bankruptcy, because he has authority himself to assess damages
upon it;” nor to money bonds for payment of a sum certain at a
day certain, against which the court can relieve on payment of the
money due, by 4 Ann. ch. 16, § 13; nor to post obit bonds ;™

‘ Willoughby v. Swinton, 6 East, & 20 Vict., ch. 108, §§ 63, segg., the
550; Harrington v. Coxe, 3 Ir. C. L. C. L. P. Act, 1860, 28 & 24 Vict., ch.
87.

126, § 22, and the county court rules,
2 Walcot v. Goulding, 8 T. R. 126;

Ryan v. Massy, 2 Ir. C. L. 642.
3 Welch ». Ireland, 6 East, 613.
* Quin v. King, 1 M. & W. 42.

°1 W. Saund. 58, n. 1; 1 Wms.

Notes to Saund. 68.
§ Moody v.
446.

1 Middleton v. Bryan, 3 M. & S.

155.
81d.; 10 Bingh. 131, Trxpat, C.
J. See now as to replevin bonds, 19

Pheasant, 2 B. & P.

1867, 259, seqq.

» Smithey v. Edmonson, 3 East, 22;
Smith v. Broomhead, 7 T. R. 300.

10 Murray v. E. of Stair, 2 B. &C.
90, 92. Under the C. L. P. Act,
1360, 23 & 24 Vict., ch. 126, § 25, by
leave of a judge, money may be paid
into court in an action on a money
bond.
oy Id. ; Cardozo v. Hardy, 2 Moore,
Actions oF Dest. 339

*nor to bonds for payment of interest and principal, where
both have become due,' even though the money became pay-
able in consequence of certain provisions in an indenture of even
date, provided that by the course of pleading the jury have found
that the money had become payable;* nor to bonds for payment of
principal and interest, with proviso that on default in paying the
interest, the whole amount of principal and interest should become
due.* But where the bond is for payment of principal on a future
day, and interest in the meantime, and the bond becomes forfeited
before the day by a default in the interest, the statute applies.* It
does not extend to judgment entered upon a warrant of attorney to
secure a sum by installments ; though the court, if necessary, would
direct an issue to inquire whether the installments had been paid; °
or to secure an annuity ;° because in such a case, if execution were
issued for more than the arrears due, “ the court would have set it
aside, or in case of any mistake have referred it to their officer, or if
necessary to a jury, to say for what sum the execution ought to’
stand.” ” And the rule is the same where the warrant of attorney is
collateral security for a bond for the same purpose.* But where a
bond was nominally absolute for payment of a particular sum, but
by indenture of same date reciting the bond, it was agreed that it
should stand as security for all sums of money which then were, or
might afterward become, due from the obligor of the bond; this
was held to be a mere evasion of the statute, and that an assign-
ment of breaches was necessary.’

It is not necessary for the crown to assign breaches under this
statute, and if any one breach is proved it is entitled to judgment.”

[#208]

Sec. 297. No more than amount of penalty and costs can be recovered on a
bond.

On the whole current of authorities, it appears that no more
*than the amount of the penalty and costs can be recovered

‘ *209

on a bond; because the penalty ascertains the damages by | ]
1 §mith v. Bond, 10 Bing. 125. 6 Shaw v. Marg. Worcester, 6 Bing.
*Id.; Darbishire v. Butler, 5 Moore, 385.

198. 1 Tinpat, C. J., id. 389.

3 James v. Thomas, 5 B. & Ad. 40. 8 Austerbury ». Morgan, 2 Taunt.
‘Tighe o. Crafter, 2 Taunt. 387; 195.
Vansandau v. ——,1B. & A. 214. ® Hurst v. Jennings, 5 B. & C. 650.
5 Cox v. Rodbard, 3 Taunt. 74; -Kin- 10 Per ALEXANDER, C. B.; R. v.
nersley v. Mussen, 5 id. 264. Peto, 1 Y. & J. 171.
340 Aotions or Dest.

consent of the parties ;! and upon payment of the penalty and costs the
court will order satisfaction to be acknowledged.” Where the debt
and penalty were the same sum, and the bond was stated to be for
the payment of the debt with lawful interest, Lrrrrepats, J., ruled
that interest might be given beyond the penalty, as damages for the
detention, on the ground that it was expressly provided that the
debt should bear interest. Here the express agreement negatived
the presumption that the parties intended to fix the penalty as the
amount of ultimate damage to be recovered.

Sec. 298. When plaintiff is not forced to sue for penalty.

But where the penalty is contained in any other instrument than
a bond, it is optional for the plaintiff, either to sue in debt for the
penalty, or to proceed upon the contract, and recover more or less
than the penalty, ¢oties guoties ;* and accordingly greater damages
than the amount of the penalty have been recovered in actions on
charter-party."

Sec. 399. Liquidated damages.

Of course where the sum named is not a penalty but liquidated
damages, the statute does not apply. In such a case the amount is
not discretionary. It is of the substance of the agreement; a jury
cannot assess damages where the parties themselves have fixed
them.°

Sec. 300. Value of sum in foreign currency.
Where an action is brought in England, to recover the value of a
given sum in a foreign currency, upon a judgment obtained abroad,

! White v. Sealy, Dougl. 49. This
is especially the case as to sureties,
although the damages may be much
more than the penaltynamed. Carter
». Carter, 4 Day (Conn.), 30; Bank of
United States v. Magill, 1 Paine (U.
8.), 662; State o. Ford, 5 Blackf.
(Iind.) 392. But a larger sum than
that named in the ad damnum may be
recovered if it does not exceed the
penalty. Hunt ». Reeves, 5 Blackf.
(Ind.) 177, but this can only be done
by procuring leave to increase the ad
damnum. Gardner v. Nites, 16 Me.
“OL Tennant’ v, Gray, 5 Munf. (Va.)

_ *Id.; Brangwin v. Perrot, 2 W. BI.
1190; Wilde v. Clarkson, 6°T. R. 303;
overruling Lord Lonsdale v. Church;
2 id. 388; Clarke 2. Seton, 6 Ves. 415,
M’Clure v. Dunkin, 1 East, 436-8;
Hellen v. Ardley, 3 C. & P. 12.

* Francis v. Wilson, Ry. & M. 105.

4 Per Lord Mansriztp, Lowe 2.
Peers 4 Burr. 2225.

5 Winter v. Trimmer, 1 W. Bl. 395;
Harrison ». Wright, 18 East, 343;
Maylam v. Norris, 2 D. & L. 829

5 Lowe v. Peers, 4 Burr. 2229; Bar-
ton v. Glover, Holt, N. P. C. 48; ante,
p. 198, e¢ seg.; 1 Wm. Saund, 58 c; 1
‘Wms. notes to Saund. 74.
Actions or Dzst. 341

the value is that sum in sterling money which the currency would
have produced, according to the rate of exchange between the
foreign country and England at the date of the former judgment.’

1 Scott 0. Bevan, 2B. & Ad. 78.
342 Actions on Brruts anp Notes.

[*210] *CHAPTER XIV.

BILLS OF EXCHANGE AND PROMISSORY NOTES.

Ssc. 301. Interest on bills of exchange.
302. From what time it 1s calculated
303. Liability of drawer or indorser to pay interest.
304. When payment by installments.
305. Tender. Payment into court.
306. Production of bill.
307. Rate of interest.
308. According to lex loci solutionis.
309. In actions against acceptor, drawer or indorser.
310. Where interest is expressly reserved.
311. Effect of want of consideration.
312. Effect of failure of consideration. Consideration executed.
Consideration independent. Partial failure.
313. Re-exchange.
314. Protest in case of foreign and inland bills.
315. Noting and postage.
816. Cost of former action.
317. Liability of transferor who does not indorse.

Sec. 301. Interest on bills of exchange.

Interest is, by usage, always allowed upon bills of exchange and
promissory notes. But where it is not expressly reserved, it is not
part of the debt, but merely damages for its detention, and the jury
are not bound to give it unless they think proper. But negligence
or default on the part of the holder seem to be the only grounds
which will justify the jury in withholding it.* Interest ought not
to be allowed on a bill or note for any time that it has been in the
hands of an alien enemy.”

The mode in which the interest is to be calculated varies accord-
ing as it is expressly reserved, or given as damages.

Sec. 302. From what time it is calculated.
Where interest is expressly reserved, it is calculated from the date

1 Ante, p. 214. 561; Keene v, Keene, 3 C. B. (N. 8.)
? DuBelloix v. Lord Waterpark, 1 144; 27 L.J. C. P. 89.
D. & R. 16; Cameron v. Smith, 2 B.& 5 Du Belloix v. Waterpark, wbi sup.
Ald. 308; Laing ». Stone, 2 M. &R. i
Actions on Bintts anp Nortzs. 343

of the instrument! whether the promise is general or to pay interest
on demand.” And even where no action could originally have been
maintained upon the note, as having been given to a married woman
by her husband and two others as sureties for him, it was held that
she might recover within six years after the death of her husband,
and obtain interest from the date." And similarly, where the
promise was by the maker of the note for himself and executors,
one year after his own death to pay 300/. with legal interest. In
this case no previous dealings between the parties were shown ; but,
in *the absence of proof, it was presumed that the note was
given for value. Had the evidence proved the contrary, so
as to render the note a voluntary gift, in the nature of a legacy, it
appears the interest would have been held to run from the maker’s
death.’

Where interest is not specially reserved it runs from the maturity
of the bill or note,* and in case of an instrument payable on
demand, from the time of demand. The commencement of the
action is a sufficient demand for this purpose.*

But it is different where there is neither a person competent to
sue for the money, nor authorized to receive it. Therefore, where
a bill, upon which interest was not expressly reserved, became due
after the death of an intestate and before administration, it was held
that interest ran, not from the maturity of the bill, but from de-
mand by the administrator.’

[*211]

Sec. 303, Liability of drawer or indorser to pay interest.

It has been held that the drawer or indorser of a bill, not bearing
interest on the face of it, is oniy liable for interest from the time
he receives notice of dishonor.’ But this decision seems contrary to
principle, as the contract by drawer and indorsers is, that the
acceptor shall pay at maturity, or that they will. Any damage
suffered by his default ought to be borne by them. Accordingly, it

' Kennerly 7. Nash, 1 Stark. 368. 6 Pierce v. Fothergill, 2 Bing. N.

? Hopper v. Richmond, 1 Stark. 413. C. 167. A demand may sometimes be
* Richards v. Richards, 2B. & Ad. dispensed with where it would be a

447. useless formality. Re East of Eng-
4 Roffey ». Greenwell, 10 A. & E. land Banking Co., L. R., 6 Eq. 368,
222. 7 Murray v. East India Co., 5 B. &

5 Gantt ». Mackenzie, 3 Camp. 51. Ad. 204. .
8 Walker v. Barnes, 5 Taunt. 240.
844 Actions on Brrts anp Nores.

is held that a person who guarantees a bill must pay interest upon
it from the time it is due. There is one case in which the plaintiff
in an action against the indorser was given interest from the time
of dishonor by non-acceptance.” It does not appear, however,
whether any interval had elapsed between the dishonor and notice
to the defendant. It may be observed that the further principle
laid down in Walker v. Barnes, viz., that the drawer was entitled to
a reasonable time to pay after notice of dishonor, has been expressly
overruled by a much later case. This is so far important to the
7 present point, as showing that *the responsibility of the
drawer or indorser was considered to be much less identical
with that of the acceptor in those days than now.

[#212]

Sec. 304. When payment by installments.

Where a note is payable by installments, and on failure of any
installment the whole is to become due, the interest is to be calcu-
lated upon the whole amount remaining due after any default, and
not upon the respective installments at the time when they would
otherwise have been payable.*

Sec, 305. Tender. Payment into court.

Interest does not run after a tender;° but when money is paid
into court tipon an instrument which bears interest, the sum must
cover interest down to the date of payment into court, and not
merely to the commencement of the action, or the plaintiff may
proceed for the difference.* In all other cases interest is carried
down to final judgment.’

Sec. 306. Production of bill.

Where the defendant by his pleading admits the bill, the plaintiff
cannot recover interest from its maturity at the date alleged in the
declaration without producing the bill. Where there has been a
judgment by default, it appears to have been held that the note
need not be produced before the Master upon a rule to compute.’

1 Ackermann v. Ehrensperger, 16 M. * Dent v. Dunn, 3 Camp. 296.

&W. 99. ° Kidd », Walker, 2 B. & Ad. 705.

° Harrison 2. Dickson, 3 Camp. g , Robinson % Bland, 2 Burr. 1081.
52n. , Hutton o. Ward, 15 Q. B.26.

3 Siggers v. Lewis, 1 C. M. & R. * Davis 0. Barker, 30. B. 606; and
370. now in such a case, jugment by default

4 Blake ». Lawrence, 4 Esp. 147. is final; 15 & 16 Vict. ,ch. 76, § 98,
Ord. 13, R. 3.
Actions on Binus ann Notss. 345

Sec. 307. Rate of interest.

Interest is calculated at the current rate of the place, according
to whose laws it is payable. It is for the jury to say what the rate
of interest in the particular place is, but it is for the judge to direct
them as to the place according to whose laws the interest is to be
assessed.! Bills and notes in England bear interest at the rate of
52. per cent, both at law and in equity.’

Sec. 308. According to lex loci solutionis.

The place at which each party to a bill or note undertakes that
he himself will pay it, is with regard to him the lex loci contractus,
according to which his liability is governed.’ Consequently, with
regard to each of the parties to a bill, interest in the nature of dam-
ages, where there has been no *express contract, may be of

*
a very different amount. Uvats]

Sec. 309. In actions against acceptor, drawer, or indorser.

Where a bill was drawn, indorsed, and accepted in France, but
payable in England, it was held in an action against the acceptor,
that he was only liable for the English rate of interest.‘ But if the
action had been against the drawer, upon default of the acceptor,
his liability to interest would have been regulated by the rate of
interest in France. “The drawer, by his contract, undertakes that
the drawee shall accept, and shall afterward pay the bill according.
to its tenor. If this contract of the drawer be broken by the
drawee, either by non-acceptance or non-payment, the drawer is
liable for the payment of the bill, not where the bill was to be paid
by the drawee, but where he, the drawer, made his contract, with
such interest, damages, and costs as the law of the country where
he contracted may allow.” *

When, however, a bill has been drawn at A., and indorsed at B.,
and the action is against the indorser, it is a question whether this
indorsement ¢s a new drawing of a bill at B., or only a new draw-
ing of the same bill, that is, a bill expressly made at A. In the
former case it would carry interest at the rate at B.; in the latter,

1 Gibbs v. Fremont, 9 Ex. 25. 5 Per Hon. PEMBERTON LeEIcu, Allen
? Upton ». Ferrers, 5 Ves. 803, ». Kemble, 6 Moo. P. C. 314, 321;
5 Story’s Confl. of Laws, § 315. Cougan ». Bankes; Chitty on Bills,

4 Cooper vo, Waldegrave, 2 Beav. 9th ed., 683; Gibbs o. Fremont, 9
282. Exch, 25.
346 Actions on Britis anp Norss.

at A.' There is a difference upon this point. Pardessus adopts the
latter opinion.’ He says, “L’obligation de dommages-intéréts fait
partie de la convention intervenue entre le tireur et le preneur, et
chaque endosseur s’est porté caution d’exécuter engagement du
premier. Chacun d’eux peut donc, dans l’espéce présentée, étre
contraint de payer tous les dommages-intéréts auxquels le défaut
dacquittement de la dette peut donner lieu.” The weight of
authority in England, however, is certainly in favor of the other
view. Lord Lanepauer, M.R., in the case previously cited,’ says,
“ At the time when there is a breach of the contract of the acceptor
by non-payment in the country where payment is contracted to be
made, there may be a contemporaneous breach of contract by the
drawer or indorser in the country where the contract was entered
into—where the bill was drawn *and the indorsement made,
and the consequences of that breach of contract might be
governed by the law of the country where it takes place.” Here
his Honor places drawer and indorser as each liable on the same
principle, viz.: according to the law of the place where their con-
tract was made. These words are relied on by Mr. T. Pemserton
Leiex in Allen v. Kemble.* And no difference is taken between
the cases. As the latter decision ‘settled the liability of the drawer,
according to the opinion first quoted, it may be fairly argued that
the liability of the indorser would have been similarly settled, if the
question had arisen. The high authority of Srory, J., is also mar-
shalled on the same side.°

[214]

Sec. 310. Where interest is expressly reserved.

Where interest at a particular rate is expressly reserved upon the
face of the instrument, it becomes of course part of the debt, and
the drawer and every indorser is liable to pay this exact amount,
wherever his own contract was made. It is not an additional dam-
age accruing from his own breach of contract, but an integral part
of the sum which he has contracted to insure. Interest, may, how-
ever, be expressly reserved, without any mention of the rate. In

1 Per AupERSON, B., 9 Exch. 31. 5 Story’s Confl. of Law, § 315. See
? Cours de Droit Com., art. 1500. further, Hirschfeld ». Smith, L. R., 1
3 Cooper v. Waldegrave, 2 Beav. ©. P. 340; 35 L. J.C. P. 177; Lebel

282, 285. v Tucker, 8 B. & S. 830; L. R., 3
46 Moo. P. C. 822. Q. B. 77; 37 L. J. Q. B. 46.
Actions on Brrts anp Norss. 847

such cases, the rule is laid down by Mr. Chancellor Kenr,! and by
Mr. Judge Story * as follows: “ The law of the place where the con-
tract is made is to determine the rate of interest, when the contract
specifically gives interest ; and this will be the case, though the loan
be secured by a mortgage on lands in another State, unless there be
circumstances to show that the parties had in view the law of the
latter place in respect to interest. When that is the case, the rate
of interest of the place of payment is to govern.”

The circumstances which utterly vitiate a bill, such as fraud, im-
morality, and illegality, of course do not come within our object.°
But as the bill may be a perfectly fair and legal transaction, and
yet the holder have no right to recover *at all, or only a [#915]
part of the sum named in it, the question of consideration
becomes important.

Sec. 311. Effect of want of consideration.

As between immediate parties to the instrument, such as drawer
and acceptor, indorser and his indorsee, the rule is very simple. An
original absence of consideration,* or an entire failure of considera-
tion,° will be an entire bar to the action. And a partial absence, or
failure of consideration will be a bar pro tanto.*

“But between remote parties, for example, between payee and
acceptor, between indorsee and acceptor, between indorsee and
remote indorser, two distinct considerations at least must come in
question ; first, that which the defendant received for his liability ;
and, secondly, that which the plaintiff gave for his title. An action
between remote parties will not fail, unless there be an absence or
failure of both these considerations. And if any intermediate
holder between the defendant and plaintiff gave value for the bill,
that intervening consideration will sustain the plaintiff's title.” ’
Nor is it any defense in an action by indorsee for value against the
acceptor, or any other person who has received no consideration, that

12 Kent’s Com. 460, 461. ®Darnell v. Williams, 2 Stark. 145;
> Confl. of Laws, § 305. Barber v. Backhouse, 1 Peake, 60;
* See Byles on Bills, 5th ed., 95-105, Simpson 2. Clarke, 2 C. M. & R. 342.
10th ed., 131-145. 7 Byles on Bills, 5th ed., 92; Robinson

‘Holliday ». Atkinson, 5 B. & C. ». Reynolds, 2 Q. B. 196; Collins o.
501; Southall v. Rigg, 11 C. B. 481; Martin, 1 B. &. P. 651; Hunter v.
Crofts v, Beale, id. 172. Wilson, 4 Exch. 489.

5 Wells o. Hopkins, 5 M. & W. 7;

Solly ». Hinde, 2.C. & M. 516.
348 Actions on Birts anp Notes.

the plaintiff took with notice of that fact; unless the indorsement
to the plaintiff amounted to a fraud upon the defendant, of which
the plaintiff at the time was aware.” And the same rule prevails,
though it was indorsed to him after due.* But where the bill is an
accommodation bill, and known to be so by the indorsee, he can
only recover on it the amount he has actually paid on it;* though if
he were ignorant of that fact, he might recover the whole amount,
although he had not paid so much.*

Sec. 312. Effect of failure of consideration. Consideration executed. Con-
sideration independent. Partial failure.

*With regard to failure of consideration, three things are
to be observed: 1. That if the consideration for which the
bill was given is once executed, no subsequent tortious act by which
the defendant is deprived of the benefit of that consideration can
be a defense to the bill.

Therefore, where the plaintiff had agreed to execute a lease of
premises to the defendant, and the defendant had accepted a bill for
the consideration money, and been let into possession, it was decided
to be no answer to an action upon "the bill, that the plaintiff had
refused to execute the lease.° And the same decision took place
where the bill was given for the price of goods, which the plaintiff,
who was the vendor, had forcibly retaken in two months after
delivery.’ In each case the only remedy was by cross action against
the plaintiff. ,

2. That, where the bill is given in pursuance of an agreement
to pay money on a particular day, such agreement being
absolute and not dependent upon the execution of the considera-
tion, the non-performance of the latter is no defense to an action
on the bill, while the contract remains open and unrescinded. An
action was brought upon a note for 200/. There was an agreement
of the same date with the note, by which it appeared that in consid-
eration of 200/., then paid or secured to them by the defendant, and
in consideration of 1,140. to be paid on the 2d February, the

[*216]

1Fentum 2. Pocock, 5 Taunt. 192; 4 Jones v. Hibbert, 2 Stark. 270.
Manley v. Boycot, 2H. & B. 46. ° Wiffen v. Roberts, 1 Esp. 261.

°ivans v. Kymer, 1 B. & Ad. 528. °Moggridge v. Jones, 14 East, 486.

7Sturtevant v. Ford, 4 M. & G. "Stephens o. Wilkinson, 2 B. & Ad.
101; Stein v. Yglesias, 1C.M.& R. 3820; and see Grant v. Welchman, 16
565; Lazarus v. Cowie, 3 Q. B. 459. East, 207.
Actions on Brrus anp Norss. 349

plaintifis agreed to convey to the defendant an estate subject to two
mortgages. The estate was not conveyed owing to a dispute with
the mortgagee, who refused to assign his interest; held that the
action on the note was maintainable. Lord Trnrgrpen, C. J., put
the decision on the ground that by the agreement the purchase
money was to be paid on the 2d February in any event. Parke,
J., inclined to think that the action would not have been maintain-
able, if the circumstances had been such that the defendant, having
paid the 2007. as a deposit, would have been entitled to recover it
back. This he could not do as long as the contract remained open.
But that was the case here, for the plaintiffs agreed only to convey
the estate subject *to the two mortgages. They were never
bound to convey the legal estate to the plaintiff, but only the
equity of redemption; and that they never had refused to convey.!

3. A bill of exchange cannot be accepted on a quantum meruit,*
and where a bill or note is given for the price of goods, evidence of
inferior quality is never admissible in reduction of the claim.* But
it is otherwise where the inferiority of the article arises from fraud
on the part of the seller ; this makes the bill bad ab initio." It would
appear, then, that though a partial absence of consideration may be
set up,° a partial failure of consideration never can, but must always
be matter of cross action. ?

[*217]

Sec. 313. Re-exchange.

For an explanation of re-exchange on dishonored bills, see Byles
on Bills. The drawer of the bill is liable to re-exchange, no matter
how many the hands through which the bill has been returned, and
on which the exchange charges have been accumulating, because,
by making himself liable for the acceptor, he makes himself liable

1 Gpiller v. Westlake, 2 B. & Ad. 4 Lewis .Cosgrave, 2 Taunt.2; Solo-

155. mon v. Turner, 1 Stark. 51.
? Lord ELLENBoROUeH, 2 Camp. 5 Wiffen v. Roberts, 1 Esp. 261; Jones
347. v. Hibbert, 2 Stark. 270.

3 Id.; Morgan v. Richardson, 1 Camp.
40 n.; - Fleming v. Simpson, id.; ; Trickey
v. Lame, 6 M. & W. 278; Cripps ¥.
Smith, 3 Ir. L. R. 277; the ruling of
TINDAL, C. J., in De Sewhanberg oe
Buchanan, 5 C. & P. 345, upon this
point seems incorrect.

8 5th ed., 312; 10th ed., 412. And
as to the inadmissibility of evidence of
an alleged custom among London mer-
chants, giving to the holder an election
between the re-exchange and the
amount given for the bill; Suse v.
Pompe, 8 C. B. (N. 8.) 538; 30 L. J.
C.P. 75.
850 Aotions on Brits anp Nores.

for all the consequences of the acceptor’s default.1_ And the same
rule holds as to an indorser.? But the acceptor is not liable on this
account, as his contract is only to pay the sum specified in the bill,
and legal interest, according to the rate of the country where it is
due.* Where, however, the maker of a note made it “payable in
Paris, or at the choice of the bearer, in Dover or London, according
to the course of exchange upon Paris,” and shortly after all direct
exchange ceased between London and Paris, though a circuitous
course of exchange was maintained through Hamburg ; held that the
[#218] *plaintiff was entitled to recover upon the note, according to

the system of circuitous exchange existing at the time the
note was presented for payment.’

Sec. 314. Protest in case of foreign and inland bills.

In the case of a foreign bill of exchange, a protest for non-accept-
ance is necessary by the custom of merchants, to charge the drawer ;°
but it may be dispensed with under those circumstances which
render notice of dishonor unnecessary. Protesting inland bills is
unknown to the common law;’ but stat. 9 & 10 W. III, ch. 17,
authorizes the protesting for non-payment of all inland bills for the
amount of 52. or upward, drawn payable at any time after date;
and 3 & 4 Ann., ch. 9, § 4, authorizes a protest of the same bills
for non-acceptance, for which protest there shall be paid 2s. and no
more. And 2 & 3 W.IV, ch. 98, allows the protesting for non-
payment of all bills of exchange, which are made payable at any
place, otber than the place named as the residence of the drawee.
No bills can be protested except such as come within the words of
the statutes, and a bill payable so many days after sight is not within
stat. W. III, and no expenses of protesting can be recovered upon
it.” It hasbeen thought that the stat. of 3& 4 Ann., ch. 9, which
places promissory notes on the same footing for all practical —pur-
poses as bills, authorizes protest.’ It certainly does not do so in

‘ Mellish v.Simeon, 2 H. Bl. 378. 6 Rogers 0. Stephens, 2 T. R. 713;

® Auriol v. Thomas, 2 T, R. 52. as to these circumstances, see Bicker-

® Napier v. Schneider, 12 East, 420; dike ». Bollman, 2 Sm. L. C. 63, 6th
Woolsey v. Crawford, 2 Camp. 445. ed.

4 Pollard ». Herries, 3 B. y P. 335. " Byles on Bills, 5th ed.,198; 10th ed.,

5 Gale », Walsh, 5 T. R. 289; Orrv. 259; Leftley o. Mills, 4), R. 173.

Maginnis, 7 Hast, 359. Leftley o. Mills, 4 T. R. 170,
® Byles on Bills, 193; 10th ed., 259.
Actions on Birts anp Nores. 851

terms, and if they were included, it is strange no mention should be
made of them in 2 & 3 W.IV, ch. 98. Since it has been decided
that interest may be recovered on an inland bill without protest,!
the practice has become quite useless.

Sec. 315. Noting and postage.

Expenses of noting and postage, incurred on the return of an in-
land bill, must be specially laid;’ and it is doubtful *whether
a charge for noting isin any case recoverable on an inland
bill that has not been protested.°

[*219]

Sec. 316. Costof former action.

A party to a bill, who has been sued upon it, cannot recover the.
costs of the suit, in an action against the party who is liable to
him.*

Sec. 317. Liability of transferor who does not indorse.

A party to a bill, who transfers it without indorsement, does not
warrant the solvency of the parties to it,° and no action can be
maintained against him, if it is dishonored. He does, however,
warrant it to be such a bill as it purports to be. Therefore, if it is
forged ;° or if professing to be a foreign, it is really an inland bill,
and, therefore, void for want of a stamp, the transferor must refund
the amount received, though he was ignorant of the defect, and
though the bill would have been paid, notwithstanding the defect,
only for the bankruptcy of the acceptor,’ or the laches of the
holder.*

'Windle o. Andrews, 2 B. & Ald. ing as for the amount of the bill or
696. note.

? Hobbs ». Christmas, Byles on Bills, 3 Kendrick v. Lomax, ubi sup.
192; 10th ed., 258; Kendrick 0. Lomax, 4 See ante, p. 123.
2C.& J. 405. Under the summary : , Fenn v. "Harrison, 3 T, R. 757.
procedure on bills of exchange act, I ones v. Ryde, 5 "Taunt. 488,
1855, 18 & 19 Vict., ch. 67, § 5, the "Gompertz . Bartlett, 2 E. & B.
holder of adishonored bill or notehas 849.
the same remedies for expenses of not- 8 Wilson v. Vysar, 4 Taunt. 288.
352

[#220]

Sec. 318

319,
320.
321.
822.
823.
324.

325.
326,
327.

328.
829.
330.
331.

382.
333.
334.
335.
336.
337.
338.
339.
340.
341.
342.

343.
344,
345.
346.
347.
348.
349.
350.

Actions FoR REnt.

*CHAPTER XV.

ACTIONS BETWEEN LANDLORD AND TENANT.

. Actions for rent.

Use and occupation.

Where there is an agreement.

Value of premises may be increased by extrinsic circumstances.

Annual value, how estimated .

Period for which plaintiff can recover.

Rent in general cannot be apportioned. When it may be at
common law.

Apportionment by statute.

Apportionment act, 1870.

Tenant holding over after notice to quit given by himself. What
notice sufficient.

Holding over after notice by landlord.

Who may sue.

Deduction on account of payment made by the tenant.

Should be pleaded as payment, and be deducted from rent next
due.

Actions against tenant on covenant to keep in repair.

Damages on covenant to keep in repair.

When landlord has repaired.

When damage was before execution of lease.

Damages against assignee of lease.

Proof of disrepair.

When action is brought at the end of the term.

Subsequent erections.

When plaintiff’s interest has ceased.

Damages must arise from the defendant’s neglect.

Meaning of a covenant to repair. What amount of repair is
necessary. Evidence of previous disrepair.

Assignee of a term.

Expenses of survey.

Repair of party-wall.

Where there is a condition precedent.

Actions against the lessor.

Effect of previous recovery of damages.

Actions for breach of building covenants,

Covenant to mine.
Actions For Rent. 353

Sec. 351. Covenant to pay renewal fine.
852. Covenant to insure where no loss has occurred. Charles ».
Altin,.
353. Where a loss has occurred.
854. Loans secured by assignment of policy.
355. Forfeiture of policy.
356. Covenant to pay rates.
357. Alternative covenants.
858. Covenant to deliver up possession.
359. Covenant not to assign.

Sec. 318. Actions for rent.

In a previous chapter I examined contracts relating to the pur-
chase or sale of land, and the damages which might arise from their
breach. In the present chapter I propose to collect together those
contracts which relate to the terms on which it is to be held. The
most universal and important of these is the contract for payment
of rent. Others, such as covenants to repair, present important
matter for consideration also. Covenants for title, quiet enjoyment
and against incumbrances, have been discussed before,’ as referring
rather to the nature of the thing parted with, than the manner in
which it was to be occupied.

I. Rent is generally a fixed sum, reserved by a written instru-
ment. In this case difficulty can seldom arise, as the jury have
merely to give a verdict for the amount claimed for arrears, and
interest upon it from the time due.” Where there was a lease of
coal mines to the defendant, yielding and paying yearly for every
ton of coal that should be worked, raised, or got in each year, not
exceeding 13,000 tons in any years, 8d. per ton, or yielding and
paying that amount of money, viz., 4337. 6s. 8d. each year as fixed
rent, whether the coal should be worked or not, and also 9d. per ton
for each ton over and above that quantity ; it was held that the whole
rent was payable, though the mine was so exhausted that the lessee
*could not raise 13,000 tons of coal in a year." The only

* : ae i #991
two cases which ever admit of conflicting evidence as to the [ ]
1 Ante, p. 284, et seq. brought for a breach of a covenant to
23 &4 W. IV, ch. 42, § 28. dig an annual amount of not less than

3 Bute 0. Thompson, 13 M. & W. 1,000 tons.of potter’s clay, an equit-
487; R.o. Bedworth, 8 Hast, 387; able plea that there was no clay, and,
Jervis ». Tomkinson, 1 H. & N. 195; therefore, performance was impossible,
26 L. J. Ex. 41. In an action recently was held good, the covenant not being

45 ’
854 Actions ror Rent.

amount to be received are, where the rent is claimed in an action
for use and occupation, and where a right to an apportionment is
set up.

Sec. 319. Use and occupation.

Debt for use and occupation lay even at common law, although
there had been a demise at a fixed rent, provided it could be treated
as a mere agreement, and nota lease.1 But by 11 Geo. II, ch. 19,
§ 14, it is lawful for a landlord, where the agreement is not by deed,
to recover a reasonable satisfaction for the lands, etc., held or occu-
pied by the defendant, in an action on the case for the use and
occupation of what is so held or enjoyed; and if in evidence any
parol demise, or any agreement (not being by deed) whereon a cer-
tain rent was reserved, shall appear, the plaintiff in such action
shall not therefore be nonsuited, but may make use thereof as evi-
dence of the quantum of the damages to be recovered.

Sec. 320. Where there is an agreement.

Where there has been an agreement settling the amount of rent,
of course the case is clear, and such agreement may be proved for
this purpose, though void as a lease by the Statute of Frauds.’

considered to amount to a stipulation
for a mininium rent in any event.

Lord Clifford », Watts, L. R.,5C. P.
577; 40 L. J. C. P. 36. The rent of
a quarry at a certain number of cents
per perch (the amount varying with
the quality), upon each and every
perch of stone quarried, is held to
amount to acertain money rent. Cross
» Tome, 14 Md. 247. Rent may
issue out of lands and tenements corpor-
eal, or out of them and their furniture ;

1 Gibson v. Kirk, 1 Q. B. 850.

*De Medina v. Polson, Holt, 47.
There is not, in the absence of a con-
tract to that effect, any obligation on
the part of the landlord either to re-
pair or rebuild. Brown v. Barrington,
36 Vt. 40; Estep v. Estep, 23 Ind.
114; Brewster »v. DeFremery, 33
Cal. 341; McCarty o. Ely, 4 H. D.S.
(N. Y. C. P.) 375; Fowler v. Bott, 6
Mass. 68; and this isso even though
after the lease is made, he expressly
promises to do so; Libbey ». Tolford,
48 Me. 316; Gottsberger v. Radway,

Mickles », Grant, 1 Grant’s (Penn.) Cas.
320; but quere, if the amount issuing
out of each cannot be ascertained,
can there be a distress for the rent?
Com. v. Coutner, 18 Penn. St. 439.
Equity will not relieve a tenant from
his liability to pay rent after premises
have been burnt down, even though the
landlord have received funds from an
insurance office, and refused to re-
build. Loft v. Denis, 1 E. & E. 474;
28 L. J. Q. B. 168.

2 Hilt. (N.Y. C. P.) 342; therefore,
in the absence of a statute relieving a
tenant from rent where premises are
destroyed by fire or other casualty,
or some stipulation to that effect in
the contract, his liability for rent con-
tinues throughout the whole term, al-
though the premises were destroyed
upon the first day of the term, and this
no matter how strong the moral obli-
gation on the part of the landlord to
rebuild may be. Ely v. Ely, 80 Il.
582; Linn v. Ross, 10 Ohio, 412; Gib-
son v. Perry, 29 Mo. 245; Proctor v.
355

Actions For Rent.

Such an agreement, however, is only evidence of the amount of
rent to be paid, where the lessee has enjoyed under it. And where
the lessee took under an agreement which he never signed, and the
lessor failed to fulfill the agreement, in the principal point which had
induced the lessee to propose becoming a party to it, the court held
that he could scarcely be said to have so enjoyed. Accordingly, the
jury were at liberty to find any such value as they considered that
which he had enjoyed to be worth. Even payment of rent
*at a particular rate is only evidence of an agreement, and [#299]
will not be conclusive, where any facts show that such rate
was not intended to be permanent. A tenant was let into possession
of land during the currency of a term, the rent then being 47/., with
an agreement that at the end of the term he was to pay 807. He
paid the 477., but disputes arising on the new agreement, it was
abandoned, and he continued to occupy. It was held that the jury
were to consider what was a fair rent for the continued hoiding, and
that no necessary inference could be drawn from the former hold-
‘ing at 472.”

.

Sec. 321. Value of premises may be increased by extrinsic circumstances.

The question as to the value of the premises is of course one
entirely for the jury. Some light may be thrown upon the princi-
ples which should guide them in cases of difficulty, by reference to
cases decided under the acts for assessing to the poor rates. It has
been held for this purpose, that lands and houses are ratable, not
only with reference to what may be regarded as their present
intrinsic value, but to any circumstance which for the time increases
the beneficial interest of the party who enjoys them. Thus, where
a small plot of ground was rendered valuable by a mineral spring,
and the buildings upon it derived a profitable character from that

Keith, 12 B. Monr. 252; Cross v. Button,
4 Wis. 468. The tenant has no right to
abandon the premises because they
have become unhealthy; Westlake v.
DeGraw, 25 Wend. (N. Y.) 669; or
because they have from any cause be-
come untenantable. Thus, the lessee
of a grist and saw-mill is bound to
pay rent, although the main posts of

1 Tomlinson v. Day, 2 B. & B, 680;
Swatman v. Ambler, 8 Ex. 72.

the building supporting all the ma-
chinery were so decayed that shortly
after entering under the lease they
gave away, and the building fell, de-
stroying all the machinery, as it was
equally within the knowledge of both
parties that the posts were liable to
such defects. Davis. Smith, 15 Mo.
467.

2 Thetford (Mayor of)». Tyler, 8 Q.
B. 95.
856 Actions ror Rent.

circumstance, the lands and buildings were held to be ratable with
the spring, at the profits which they produced in association.! So
where any right is attached to the possession of a tenement, as a
soke mill, which is entitled to the sole multure of all the corn and
grain in the neighborhood, or a canteen in ‘a barracks, which naturally
attracts all the custom of the soldiers and their followers.’ And so
where machinery is demised along with the tenement, whether that
machinery be real or personal property.’ Of course there is this
difference between the rules to be observed in assessing for poor
rate, and assessing for rent, that in the former case the entire value
of the tenements and their adjuncts is to be taken into considera-
tion, whether such additional value has been conferred upon them
by the act of the tenant himself or not; but for the purpose of
[#293] ascertaining *the rent due to the landlord, only such value as
has been received at the time of the demise can be taken
into account. Otherwise the tenant would be paying a rent upon
the outlay of his own capital. But although the value of lands or
tenements consists not only in the land itself, but also in those
things which have been attached, so as to become part of it, the case
is different where the increased value arises from a contract by the
landlord, to do something which will be beneficial to the occupier.
For instance, to supply a public-house with ale at fixed prices, or to
provide a tenant with horses to be used on or off the tenement as a
moving power, or with steam for the like purpose. The compensa-
tion for the power can in neither case form a part of the value of
the subject of the occupation. This is clearly a matter quite inde-
‘pendent of the demise, and in respect of which either party may
maintain an action on the contract.

Sec. 322. Annual value, how estimated.

The annual value is properly estimated at the rent which a tenant
would give, he paying the poor rates and the expenses of repairs,
and the other annual expenses for making the subject of occupation
productive ; if the subject of occupation be of a perishable nature;

1R, vo. Miller, Cowp. 619. Haslam, 17 ati B.220; Reg. v. Lee, L.
°R. o. Bradford, 4 M. & 8. 817. R,1Q.B
'R, vo. St. Nicholas, Gloucester, 4 Per Panes, B., Robinson »v. Lea-
Caldec, 262; R.v. Hogg, 1 T.R. 721. royd, 7 M. & Ww. 48; Sunderland
R. v. Guest, 7A. & HE. 951; Reg. 2. pa vo, Sunderland Union, 34 L.
.M.C. 121,
Actions ror Renr.

857

or require an annual expense to secure its existence, an allowance
ought to be made on that account. It is on this principle that
buildings, machinery, canals, gas works, etc., are rated at a less pro-
portion than arable or other land.

Sec. 323. Period for which plaintiff can recover. .

Where the tenant has not come into possession under the plain-
tiff, the latter can only recover for the time during which he him-
self has had a legal title, although he may have had the equitable
estate, as assignee of the equity of redemption long before.’

Sec. 324, Rent in general cannot be apportioned. When it may be at com-
mon law.

*The general principle of law is, that there can be no appor-
tionment of rent, except by the assent of the parties, either in re-
spect of a portion of the time, or a portion of the property. Therefore,
where there has been asurrender or an eviction in the middle of the
period for which rent is payable, the landlord cannot recover rat-
ably for the shorter period during which the tenant was in posses-
sion.’ Nor can he recover any part of the rent, where he has him-
self evicted the tenant from part of the land; but where there has
been a surrender of part of the land, or the lessor has entered upon
prrt for a forfeiture, or by special condition for entry, or the lessee
be evicted from part of the land by title paramount, the rent shall
be apportioned.‘ And so, where the reversion is severed by a grant
of part of the premises, the rent-service incident to the reversion
shall be apportioned.’ Possession by a tenant, who has been let in
by the lessor under a lease of prior date, and still in existence, is an
eviction by superior title, such as would create an apportionment of
rent in favor of a subsequent lessee. But where such lease lasts for
the entire term over which the subsequent lease was to extend, the

[#204]

1R. ov. Lower Mitton, 9 B. & C. 810;
Reg. v. Cambridge Gasl-ight Co., 8
A. & E.73; R.v, Adames, 4B. & Ad.
61. An allowance should be made
for ground rent if paid by the occu-
pier; Barber 0. Brown, 1 C. B. (N.
8.) 121; 26L.3. C. P. 41, and for
the annual repairs of perishable farm-
buildings and machinery, and in re-
spect of their contingent or future re-
newal or reconstruction when past

repair; R. v. Wells, L. R., 2.Q, B.
542. As tothe case of surface land,
with machinery, fixtures, etc., occu-
pied by the owner of the mine under-
neath, see Guest v. East Dean, L.R.,
7 Q.B. 334; 41 L. J. M,C, 129.

? Cobb ». Carpenter, 2 Camp. 18, n.

3 Walls v. Atcheson, 3 Bing. 462;
Hall », Burgess, 5 B. & C. 382.

4Co. Lit. 148, a; 3 Rep. 22.

5 Co, Lit. 148, a; 13 Rep. 57, a.
858 Actions FoR Rent.

lease is utterly void as to that part, and the rent is not apportion-
able, and no distress can be maintained for it.1_ No action will lie
for use and occupation of a part, where there has been an eviction
of another part by the lessor.’

Sec. 325. Apportionment by statute.

Various statutory provisions have passed, to remedy the evil
which arose on the determination of leases, by a death in the middle
of the current half year. In such cases the rent for the fractional
period was wholly lost. The party who made the lease, or his rep-
resentatives, could not recover, because the rent was never due; and
the person next entitled could not recover, because the tenant had
never been in possession of his land. By the joint operation of 11
Geo. II, ch. 19, § 15, and 4 W. IV, ch. 22, § 1, in all cases in
which a lease determines on the death of the lessor (although not

[#295]

strictly tenant for life), or on the *death of the life during
which the lessor was entitled, the representatives of the

lessor in the former case, or the lessor himself in the latter, may re-
cover a ratable portion of the rent growing due.
The next section of the last-named act * provided that in case of

‘Neale v. McKenzie, 1 M. & W.
747,

? Reeve v. Bird, 1 C. M. & R. 36;
overruling Stokes v. Cooper, 3 Camp.
514, n., contra. As to pleading evic-
tion, see 1 Wms. Saund. 204, n. 2; 1
Wms, Notes to Saund. 209, n. 2.

34 &5 W. IV, ch. 22, § 2. This act
was held only to apply to cases in
which the interest of the person inter-
ested in rents and payments was deter-
mined by his death or by the death of
another person; but not to allow an
apportionment to be made between
the real and personal representatives
of a tenant in fee; Brown v. Amyot,
3 Hare, 178; Beer v. Beer, 12 C. B.
60; 21 L. J. C. P. 124; Ex parte Clu-
low, 3K. & J. 689; 26 L. J. Ch. 513.
Seemingly it applied only to the death
of the party entitled to the rent in
whose favor it was to be apportioned,
not to the death of the party bound
to pay. The court of queen’s bench
expressed a strong opinion that no ap-
portionment could take place where
the tenancy had been put an end to
by the act of the landlord; Oldershaw
o. Holt, 12 A. & H. 590. In no case

did the statute apply to payments
which were not due under some in-
strument in writing; Re Markby, 4
My. & Cr. 484; Cattley v. Arnold, 1
Johns. & H. 651; 28L. J. Ch. 352.
It was held to apply to suits arising
out of leases made after the passing
of the act, but by virtue of powers
contained in settlements or wills exe-
cuted or coming into operation pre-
vious to that date. See Lock v. De
Burgh, 4 De G. & Sm. 470; 20 L.
J. Ch. 384; Plummer v. Whiteley,
Johns. 585; 29 L. J. Ch. 247;
though in Fletcher v. Moore, 26 L. J.
Ch. 530, an opinion to the contrary
was expressed by KInDERsLEY, V. C.
See further as to the operation of this
act, St. Aubyn v. St. Aubyn, 30 L.
J. Ch. 917; 1 Drew. & Sm. 611;
Mills v. Trumper, L. R., 1 Eq. 671;
und as to annuities, Trimmer v.
Danby, 25 L. J. Ch. 424; Robinson
v. Robinson, 2 Ir. C. L. R. 370. A
mortgagee out of possession is not an
assignee of the mortgagor, nor en-
titled to an apportionment; Paget v.
Anglesey, L. R., 17 Eq. 283; 43 L. J.
Ch, 487.
Aorions For Rent. 359

any rent-service reserved on a lease, made subsequent to 16th June,
1834, by atenant in fee or for life, or person demising under a
power, and also, in case of all other rents and fixed periodical pay-
ments of any description, payable under any instrument executed,
or (in case of a will) coming into operation after the same date,
there shall be an apportionment thereof on the death of any person
interested in such rents, etc., or on the determination by any other
means whatsoever, of the interest of such person, so that he or his
representatives shall be entitled to a proportion according to the
period since the last payment.

Sec. 326. Apportionment Act, 1870.

The relief given by these acts has been extended by the recent
Apportionment Act, 1870, 33 & 34 Vict., ch. 35. Section 1 enacts,
that all rents, annuities, dividends, and other periodical payments
in the nature of income (whether reserved or made payable under an
instrument in writing or otherwise) shall, like interest on money
lent, be considered as accruing from day to day, and shall *be
apportionable in respect of time accordingly. And by sec-
tion 2, the apportioned part of any such rent, annuity, dividend, or
other payment, shall be payable or recoverable, in the case of a con-
tinuing rent, annuity, or other such payment, when the entire por-
tion of which such apportioned part shall form part shall become
due and payable, and not before, and in the case of a rent, annuity,
or other such payment determined by re-entry, death, or otherwise,
when the next entire portion of the same would have been payable
if the same had not so determined, and not before.’

The legislature, with its usual anxiety to support the interests of
landlords, has also enacted some provisions with a view to secure
the recovery of their premises, when the period of tenancy has ex-
pired.

[*226]

1Tt has been held that this act ap-
plies to all cases, whether the instru-
mhent under which the case arises
came into operation before or not till
after the passing of the act; Cline’s
Estate, L. R., 18 Hq. 218. Also

that in case of a devise of real estate,’

the rents are apportionable between
the executor and the devisee; Capron
v. Capron, L. R., 17 Eq. 288. And

so in the case of a bequest of stock,
that the dividends are apportionable,
first as between executor and devisee
for life, and next between devisee for

life and residuary legatee; Pollock». _.

Pollock, L. R., 18 Eq. 329. As to
what comes under the term ‘‘ divi-
dends,” see Jones v. Ogle, L. R., 8
Ch. App. 192;-42 L. J. Ch. 334,
360 Actions ror Rent.
Sec. 327. Tenant holding over after notice to quit given by himself. What no-
tice sufficient.

By 11 Geo. II, ch. 19, § 18, if any tenant shall give notice of his
intention to quit the premises holden by him, at a time therein men-
tioned, and shall not deliver up possession at such time, he shall pay
double the rent which he should otherwise have paid, and so during
his continuance in possession.

Notice by the tenant under this statute may be by word of
mouth.’ But it must state such an ascertained time as would bind
the landlord, and enable him to get another tenant. Accordingly
where the notice was that he would leave when he got another situ-
ation, which he did get, this was held insufficient.” And on the
same principle of reciprocity, the notice must be given by a tenant
competent to determine his tenancy, and at the proper distance of
time necessary to make such a notice valid. Therefore, where a
tenant, who could determine his holding by a six months’ notice,
[#297] gave a shorter one, and *then held over, the landlord was not
allowed to distrain for double rent.’

Sec. 328. Holding over after notice by landlord.

The 4 Geo. II, ch. 28, § 1, provides, that whenever any tenant,
or person coming into possession of land under a tenant, shall will-
fully hold over after the end of the term, and after notice in writing
for delivering up possession from his landlord or lessor, or the per-
son to whom the remainder or reversion shall belong, he shall pay
double the yearly value of the premises. This statute, being a
penal one, is to be strictly interpreted. Where the defendant was
tenant of a room in a mill, through which the revolving shaft of a
steam-engine passed, it was ruled that in calculating the double
value, the value of the power of the steam-engine, which was sup-
plied by the landlord to turn the machinery by means of this shaft,
could not be taken into consideration. The court said that although
the rent paid was an entire sum, part of it was paid, not for the
value of the occupation, but for the landlord’s performance of a con-
tract to do something beneficial to the tenant. If the landlord, by

1Timmins v. Rawlinson, 3 Burr. > Farrance ». Elkington, 2 Camp.
1603. The analogous Irish Act, 15 591.
Geo. II, ch. 8, § 9 (Ir.), required writ- 5 Johnstone ». Hudlestone, 4 B. &
ten notice; Farrel ». Donnelly, 4 Ir. C. 922,
L. R. 476.
Actions For Rent. 361

means of the tenant having held over, is prevented from using the
steam-power beneficially, and deprived of profit thereby, he has a
remedy on his contract with the tenant to give up at the end of the
term, or for a trespass in continuing to occupy, and may recover
compensation for his loss by way of special damage.’

This statute, it will be observed, requires the notice to be in
writing.’

Sec. 329. Who may sue.

The action for double value must be brought by the person stand-
ing in the position of landlord or lessor. It cannot, therefore, be
brought by a person to whom the landlord has granted a fresh lease
to commence from the expiration of the former lease, and who is
prevented from coming into possession.* The holding over must
be contumacious, and not under a bona fide though mistaken claim
of right."

Sec. 330. Deduction on account of payments made by the tenant.

The landlord’s claim to rent is always liable to be reduced
*by the amount of any payment necessarily made by the
ees [*228]
tenant, in liquidation of a charge upon the land, or a debt
due from the landlord. Of this nature are payments made in
respect of ground rent to the superior landlord ;* interest due upon
a mortgage prior to the lease ;° an annuity charged upon the land ;”
property tax ;° land tax and paving rates.” Andit makes no difference
that the landlord was not really liable to the tax in question, if by
his own laches, in not establishing his exemption, the tenant has been
forced to pay. The amount so deducted must, however, be
paid strictly in exoneration of the landlord. Therefore where the
plaintiff demised land to the defendant upon a building lease, at the

? Robinson v. Learoyd, 7 M. & W.
48.
° See, as to the requisites of such
a notice, Page v. More, 15 Q. B.
684.

* Blatchford v. Cole, 5 C. B. (N.S.)
514; 28 L. J.C. P. 140. See, as to the
landlord’s right to recover from the
old lessee the costs of an action
brought against him by the new lessee,
ante, p. 129.

4 Swinfen v. Bacon, 6 H. & N. 184,
846; 30 L. J. Ex. 33.

46

5 Sapsford v. Fletcher, 4 T. R. 511.
See Boodle ». Cambell, 8 Sco, N. R.
104;7M. & G. 386.

§ Johnson v. Jones, 9 A. & EH. 809.

™Taylor ». Zamria, 6 Taunt. 524.

8 Baker ». Davis, 3 Camp. 474.

® Andrew v. Hancock, 1 B. & B, 87.
See, as to deducting land tax after its
redemption, Moody ». Dean and
Chapter of Wells, 1 H. & N. 40; 25
L. J. Ex. 278.

10 Swatman v. Ambler, 24 L. J. Ex.
185.
362 ‘Actions on Covenant TO REparr.

rent of 601. clear of all rates and assessments, the sewer’s rate and
land tax excepted and the defendant, by building, increased the rat-
able value of the land to 3007. per annum, he was only allowed to
deduct the sewer’s rate and land tax upon the original rent, and not
upon the improved value.’

Sec. 331. Should be pleaded as payment, and be deducted from rent next due.

Deductions of this sort are pro tanto payment of the rent and not
a set-off, and should be pleaded accordingly.? By the express terms
of the statutes, payments of land tax, paving rates, and property
tax must be deducted from the rent due; and if the tenant pays the
rent in full, without making such a deduction, he is left without
remedy.’ The same principle appears to be laid down by Park, J.,*
as applicable to other payments, as for instance, of ground-rent.
The reason is, that when the entire rent is paid, where part only is
really due, the surplus is a voluntary payment with full knowledge
of the facts, and therefore not recoverable.”

Sec. 332. Actions against tenant on covenant to keep in repair.

[#229] *Covenants to repair may throw that obligation either
upon the tenant or the landlord. The tenant also may either

contract to keep in repair during the tenancy, or leave in repair at

its determination.

1. When the tenant covenants to keep in repair, an action may
be brought for breach of covenant at any time during the continu-
ance of the lease.° And Lord Hotr ruled that in such a case the
measure of damages was the amount it would cost to put the prem-
ises into repair.” This view, however, has been departed from in
later cages, and it has been ruled that the measure of damages is the
extent to which the marketable value of the reversion is injured.
This would be very great if the lease was near its expiration ; very

1 Smith v. Humble, 15 C. B. 321. 5See 1 Sm. L. C. 163, 6th ed;

° Sapsford ». Fletcher, ubi sup.; th ed., p. 170.

Denby v. Moore, 1 B. & A. 123;  ® Luxmore», Robson, 1B. & Ald. 584.
Franklin ». Carter, 1 C. B. 750. A covenant to put in repair can only
3 Andrew ». Hancock, ubi sup.; be broken once; and when damages

Stubbs ». Parsons, 3 B, & Ald. 516; have been once recovered in respect of
Cumming v. Bedborough, 15 M. & W. that breach,no more can be recovered.

438. . Coward v. Gregory, L. R., 2 0. P. 153;
4Carter v. Carter, 5 Bing. 409, 361L.J.C. P.1.
410. " Vivian ».Champion, 2 Ld. Raym.

1125.
Actions on Covenant To Reparr. 363

small if it had a long time to run.' And this rule has repeatedly
been affirmed in very recent cases.’ The case of Marriott v. Cotton
as reported at Nisi Prius’ seems opposed to this rule. The action
was upon a contract to repair. Plea that the premises were in good
repair until they were accidentally burnt down, and verdict for the
defendant upon this plea. Damages were to be assessed contin-
gently, in case the plea should be held bad, and Rotrs, B., directed
nominal damages. He said that otherwise, as the action was brought
during the tenancy, the plaintiff might put the money into his pocket,
and then bring another action for non-repair, in which, on the prin-
ciple contended for by the plaintiff, he would be entitled again to
recover substantial damage. But it appears that in a subsequent
stage of the case this ruling was reversed, and that substantial dam-
ages were entered up.*

Sec. 333. Damages on covenant to keep in repair.

*On the other hand it has been said that the rule laid down
in Doe v. Rowlands, that the injury to the marketable value
of the reversion is the measure of damages, is not of universal appli-
cation. In a case which was much considered in Ireland, the lease,
containing a covenant to keep in repair by the lessee, had, -at the
time of action brought, more than eight hundred years torun. It
was argued that the lessor was only entitled to nominal damages,
the measure of damages being not the amount which would restore
the premises to their pristine condition at the date of the lease, but
the amount of injury done to the reversion, and that one shilling
laid out at interest would at the end of eight hundred years far
exceed the sum which the plaintiffs could then claim. Mazrmre and
Brapy, C., after expressing doubts both of Marriott v. Cotton, and
Doe v. Rowlands, and remarking on the difticulty of saying what
upon the authorities should be the measure of damages, refused to

[#2380]

‘Doe d. Worcester School Trustees recovered pending the term, O’BriEn,
vo. Rowlands, 9 C. & P. 734; Smith », J., stated that he had procured -from
Peat, 9 Ex. 161; 23 L. J. Ex. 84, the offices of the Queen’s bench in

* Mills v. East London Union, L.R., England copies of the orders made in
8C. P. 79:42 L. J.C. P. 46; Williams Marriott ». Cotton, and that the case
v. Williams, L.R., 9C.P.659; 438 L. J. went to the court above, and the ver-
C. P. 382. dict for nominal damages was set aside,

® Marriott ». Cotton, 2 C.& K. 558. and a verdict entered for substantial

‘In Bellv. Hayden, 9Ir. C. L. Rep. damages.

801, where substantial damages were
364 Actions on Covenant To REparr.

say that nominal damages only could be recovered, and left it gen-
erally to the master to ascertain the amount of damage sustained by
the plaintiff in consequence of the dilapidations.' And shortly
afterward in England, where a lessee sued his sub-lessee for breach
of a covenant to keep in repair, he was held entitled to recover sub-
stantial damages, although he had no reversion, the lessor having
ejected both lessee and sub-lessee for non-payment of rent. Bram-
WELL, B., said that the criterion of damage proposed, namely, the
diminution in value of the reversion was a very good test, but not
the only test of the damages to be recovered; and Watson, B., said
“the damages recovered are usually such as are sufficient to put the
premises into repair. As a matter of fact, it is never proved in evi-
dence to what extent the reversion is damaged.” ?

It is to be observed upon this latter case, as Pontoox, C. B.,
pointed out, that although the plaintiff had been ejected by his lessor
for non-payment of rent, he still continued liable upon his own
covenant to repair. The damages to which his lessor would have
been entitled, would have been the amount necessary to put the
premises in repair; for this amount would exactly measure the injury
_ to his reversion. Obviously, therefore, he was entitled to receive
exactly the same amount from *his sub-lessee. As Watson,
B., putit, “the true foundation of the action is, not that the
reversion is, but that it may be damnified by the conduct of the
lessee.” The plaintiff was entitled to say to his sub-lessee, “ My
reversion was substantially injured by your failure to repair. The
fact that I have subsequently lost the reversion has neither lessened
the injury done to me, nor affected your obligation to pay for that
injury.” In the Irish case, too, it is obvious that the length of the
term was no reason why the reversion might not fall in at once; ¢.g.,
from non-payment of rent, or other cause of forfeiture. If so, the
argument for the defendant fell to the ground.

[*231]

Sec, 334. When landlord has repaired.

When the landlord is forced to repair himself, in the middle of
his tenant’s term, in order to save a forfeiture of his own estate to
his head landlord, it seems that the damage he will be entitled to

' Macnamara v. Vincent, 2 Ir. Ch. * Davies ». Underwood, 2 H. & N.
Rep. 481. 570; 27 L. J. Ex. 113.
Actions on Covenant To Reparr. 365

recover will depend upon the covenant on which he sues. If there
is a covenant to repair after notice, and he has given notice to his
sub-lessee, and the time has expired, and he has then entered him-
self and repaired, the measure of damages will be the cost of such
repairs, so far as they are fit and necessary. And it is not necessary
for the plaintiff to prove that the defendant assented to the repairs
being done by him, because, if there is no assent, the plaintiffs would
be trespassers and liable to an action for the entry.’ In such a case
it would not operate in mitigation of damages, that the plaintiff had,
before the commencement of the action, assigned the premises to a
third party, who pulled them down and entirely rebuilt them. The
injury was done when his breach of covenant compelled the plaintiff
to lay out money.’ But if he sues upon the general covenant to
repair, after giving notice under the special covenant, but before the
time fixed by the notice has expired, it has been held that he can
only recover nominal damages; because he cannot recover under
the special covenant, and under the general covenant he cannot
show that there has been any damage done to the reversion.* Prob-
ably in this case it was thought that the notice calling upon the
defendant to repair within two months under the special
% : [*232]
covenant, operated as an election to proceed under that
covenant, and estopped the plaintiff from demanding substantial
damages until the expiration of the time fixed by himself. But
Ido not imagine that the existence of a special covenant to repair
after notice would prevent the landlord from recovering full dam-
ages in a suit upon the general covenant to repair, if he chose to
rely exclusively upon it.

Sec. 335. When damage was before execution of lease.

The interest in premises passes from the execution of the lease,
though the duration of the term may date from some anterior period.
Therefore, where the tenant entered upon the premises in June, and
the lease was executed in November, habendwm from June, with
covenant to repair: an action was brought upon the covenant, the
breach being that he pulled down and altered the premises between

1 Colley v. Streeton, 2 B. & C. 273. 3 Williams v. Williams, L. R., 9 C.
21d., ubi sup. P. 659; 48L. J. C. P. 882.
866 Actions on Covenant to Reparr.

June and November; it was held that only nominal damages could
be recovered.

Sec. 336. Damages against assignee of lease.

The assignee of a lease is, of course, only liable for breach of
covenants committed during his own holding. But where the lease
has passed through several hands, and the premises are out of repair
when the action is brought, and are proved to have been so when
they were held by the defendant, it will be for him to show how
much of the injury arose subsequent to his occupation. And in
default of evidence by him, the jury may assess the damage at the
whole amount to which he would have been liable, had all the dilap-
idations taken place in his own time.’

Sec. 337. Proof of disrepair.

Of course strict proof must always be given of the amount of dis-
repair. Accordingly, where a county court judge told the jury that
this action was not like one for goods sold and delivered, and that
the plaintiff might rest upon general evidence in support of his
particulars of demand, without proving every item, especially as the
jury had viewed the premises with the particulars of demand in
their hands, and would therefore be able to judge if the plaintiff
had made out his case, — a new trial was granted.’

Sec. 338. When action is brought at the end of the term.

Where the action is brought upon the covenant to repair at
ss the end of the term, the damages are such a sum as *will put
[*233] Be is :
the premises into the state of repair in which the tenant was
bound to leave them ; where, beside the covenant to repair, there is
also a covenant to insure against fire for a specific sum, the defend-
ant’s liability, in case of the premises being burnt down, is not lim-
ited to this sum. The condition is only intended as an additional
security to the landlord.* The defendant, however, is not liable to
pay for improved modes of doing the work, by means of which the
parts repaired are more durable than they were on their former
principle of construction.°

1 Shaw v. Kay, 1 Ex. 412. * Digby v. Atkinson, 4 Camp. 276.
* Smith v. Peat, 9 Hx. 161; 23 L. J. fi Soward v. Leggatt, 7 C. & P.
Ex. 84. 613.

3 Smith v. Douglas, 16 C. B. 31.
367

Actions on Covenant to Reparr.

Sec. 339. Subsequent erections.

When the covenant is only to repair the demised premises, the
defendant is not bound to repair any buildings afterward erected,
even though he was wrong in erecting them, and no damages can
be recovered in respect of the disrepair into which they may have
fallen.! ,

Sec. 340. When plaintiffs interest has ceased.

It is no answer to a claim for dilapidations, that the plaintiff's in-
terest in the premises has ceased. The plaintiff may be liable over
to his superior landlord; but independently of this, the objection
cannot be set up by a party who is himself in fault.’

Sec. 341. Damages must arise from the defendant’s neglect.

Of course no claim can be maintained for any damages which do
not flow immediately from the defendant’s neglect. For instance,
the plaintiff held land under several covenants, one of which was a
covenant to repair, with a right of entry by the landlord on breach
of the covenants, and made a sub-lease to the defendant, with a
covenant to repair, which was broken by the defendant. The head
landlord ejected the plaintiff for breach of all the covenants, includ-
ing that *violated by the defendant. It was held that the [#284]
plaintiff could not recover from the defendant the value of
the term so forfeited, since there were other breaches besides those
in the defendant’s lease, and it did not appear on which of them the
ejectment had turned. And Mavtsz, J., and Bosanausr, J.,
doubted whether, in any case, the sub-tenant could be liable in such
an action for all the consequences to his landlord of a breach of
covenant contained in a lease to which he was not himself a party.°

' Doe d. Worcester School Trustees
». Rowlands, 9 C. & P. 734. Every
such covenant must be construed ac—
cording to its particular words;
Cornish »v. Cleife, 3 H. & C. 446; 34
L. J. Ex. 19; and sometimes a dis-
tinction may exist between a liability
to repair newly erected houses and a
liability to repair newly erected ad-
ditions to existing houses. Per Bram-
WELL, B., id.

2 Clow v. Brogden, 2 M. & G. 89;
and see Davies ». Underwood, ante, p.
864. In another case, a lessor recov-

ered substantial damages for dilapi-
dations, although at the expiration
of the term the premises were pulled
down under a verbal arrangement for
that purpose made previously with a
proposed new lessee. But in this
case the court laid stress on the fact
that the agreement with the proposed
new lessee was verbal only, and there-
fore not binding on either party.
Rawlings ». Morgan, 18 C. B. (N. §.)
776; 34 L. J. C. P. 185.

3 Clow v. Brogden, ubi sup., 2 Sco,
N. R. 303, 314, S. C.

r

~
868 Actions on Covenant to Repar.

Sec. 342. Meaning of a covenant to repair. What amount of repair is neces-
sary. Evidence of previous disrepair.

In estimating the amount of damages, it is, of course, important
to know what state of repair the tenant was bound to put the prem-
ises into. Where the covenant is, “to put the premises into repair,”
- this clearly means to put them into a better state of repair than the
tenant found them in.! It has also been decided, however, that a
covenant to “ keep” in repair involves a covenant to put in repair.
For they cannot be kept in good repair without being put into it.’
But the amount of repair, of course, depends on the age and class
of the house, and must differ, as that may be a palace or a cottage.
No one is bound to give his landlord a new house instead of an old
one.* A house in Spitalfields may be repaired with materials in-
ferior to those requisite for repairing a mansion in Grosvenor
square.* And, accordingly, where a lessee took premises, which at
the time were old and out of repair, under a covenant to repair, and
they were destroyed by fire, and it appeared that the cost of
re-instating them would amount to 16352:, but they would then be
more valuable by 6007. than they were at the time of the fire; it
was decided that defendant was only liable to pay 1035/., that being
the amount which the plaintiff had really lost.” This is all quite
clear, but a more difficult question arises as to how far evidence of
actual disrepair, as distinguished from mere inferiority, may be ad-
mitted. The rule laid down in Stanley v. *Towgood,* and
Mantz v. Goring,” and approved of in Payne v. Haine,’ was
that evidence might be given as to the age and class of the prem-
ises, with their general condition as to repair; but that the defend-
ant could not prove in detail that such and such a part was out of
order. Burdett v. Withers* has been thought to go beyond this.
There the defendant’s counsel wished to cross-examine as to the
state of the premises at the time of his coming into possession.
The evidence was refused, and a new trial was granted in conse-
quence. Lord Denman said, “it is very material, with a view both

[*235]

1 Belcher ». M’Intosh, 8 C. & P. 1 Per Parke, B., Payne »v. Haine,
720. 16M. & W. 545.

2 Payne ». Haine, 16 M. & W. 541; 5 Yates ». Dunster, 11 Ex. 15; 24
Easton v. Pratt, 2H. & C. 676; 33L. L. J. Ex. 226.

J. Ex. 31, 238, in Ex. Ch. °3B.N. 6.4
3 Per Auperson, B., Belcher ov. *Aid 451.
M’Intosh, 8 C. & P. 728. 816M. & W. 545.

°7 A. & E. 186.
Aotions on Covenant To REpaArr. 369

to the event of the suit, and the amount of damages, to show what
the previous state of the premises was.” And in Payne v. Haine,
Axperson, B., says: “The marginal note! of Burdett v. Withers
may be incorrect ; but the judgment is quite right, and shows that a
lessee who has contracted to keep demised premises in good repair,
is entitled to prove what their general state of repair was at the time
of the demise, so as to measure the amount of damages for want of
repairs by reference to that state.” This reconciles that case with
the others mentioned before. The question, therefore, for the
future will probably be, not so much as to the admissibility of such
evidence, as the purpose to which it may be applied. Since
Payne v. Haine, a tenant cannot justify keeping premises in bad
repair, because they happened to be in that state when he took
them. But evidence of this nature, like evidence of age, will be
admissible to show how far they were capable of being repaired at
all, and what amount of repair could have been contemplated by
the covenant.’ In other words, a house is like a ship, which varies
in class according to its original *construction, and which
descends in class by age and wear and tear, and general de-
terioration. A tenant is not allowed to say, “I found the house out
of repair and therefore I left it out of repair, or put it into imper-
fect repair.” But he is allowed to show that either by original con-
struction, or by lapse of time, the house was one of class C, and not
one of class A; and that he had done to it such repairs of an access-
ory character, such as fittings and the like, as were suitable to class
C, and such repairs of a substantial and structural character as were
sufficient to keep it in that class as far as possible. To do any thing
more would be to raise the house to a different class.°

[*236]

Sec. 343. Assignee of a term.
The doctrine of Payne v. Haine will be peculiarly difficult of

1«The defendant is entitled to
prove at the trial what the state of
the premises was at the time of the
demise.”

? See Harris ». Jones, 1 M. & Rob.
178, and Gutteridge ». Munyard, id.
334, 336, where Trnpat, C. J., says,
“Where a very old building is de-
mised, and the lessee enters into a
covenant to repair, it is not meant
that the old building is to be restored

AT

in a renewed form at the end of the
term, or of greater value than it was
at the commencement of the term.
What the natural operation of time
flowing on effects, and all that the.
elements bring about in diminishing
the value, constitute a loss, which, so
far as results from time and nature,
falls on the landlord.”

3 See an able article in the Solicitors’
Journal for 1875, p. 727,
370 Actions on Covenant To Reparr.

application in the case of assignees of a term, where the original
lease contained covenants to repair. Each assignee is only liable
for breach of covenant committed during his own holding. But if
he is bound, not only to keep the premises in as good repair as he
got them, but to put them into better, where there is actual disre-
pair, he will in effect be liable for all the breaches of his predeces-
sors. In the case of Smith v. Peat,! it is said he might be called to
prove the state of the premises at the time of the assignment to
him. But it is clear that that dictum must be taken with some
limitation.

Sec. 344. Expenses of survey.

The expenses of survey are usually borne by the landlord, unless
there be some special agreement to the contrary. Therefore, in an
action for breach of covenant, by the dilapidation of premises, the
landlord is not entitled to be allowed the expenses he has been put
to in ascertaining what has been the extent of injury sustained.’

Sec. 345. Repairs of party-wall.

A tenant was not liable, on his general covenant to repair, for the
repairs of a party-wall effected under 14 Geo. III, ch. 78,° except so
far as they were rendered necessary by his own default, and it was
for the landlord to establish the circumstances under which he
claimed to charge the tenant with any proportion of the expense so
incurred.*

Sec. 346. Where there isa conditional precedent.

[987] *The landlord’s claim to recover for breach of a covenant
to repair may depend on the performance of some condition

precedent, such as putting the premises in repair himself.° Such a

condition, when applied to a single house and premises, is indivisi-

ble, and where the landlord has only repaired a part, he cannot Te-

cover for non-repair by the tenant, even of the very part which he

19 Ex. 161; 28 L. J. Ex. 84. * Moore v. Clark, 5 Taunt. 90.

280 ruled by Freup, J., Logan v. 5 Neale o. Ratcliff, 15 Q. B. 916;
Cox, May, 1876. The case is not re- Coward ». Gregory, L. R., 2 C. P.
ported, but the learned judge has 153; 36L.J.C.P.1. See, as to the
kindly allowed me to state the ruling tenant’s right to timber, Bristol
on his authority. J. D. M. (Dean and Chapter) o. Jones, 1 EB. &

8 Repealed by 28 & 29 Vict., ch. 90, HE. 484; 28 L. J. Q. B. 201.

§ 34.
Actions on Covenant to Repair. 371

has put into repair. But if the covenant applied to two separate
dwelling-houses, of which one might be completely enjoyed though
the other was not in a condition for proper occupation, the covenants
would be divisible, and the performance of one part would, it seems,
entitle to an action for the non-performance of the corresponding
part of the covenant.’

Where one count of a declaration stated an agreement by plain-
tiff and defendant to take certain premises, subject to a covenant to
repair, and alleged non-repair; the second count stated, that in con-
sideration that defendant was tenant to plaintiff of a certain other
messuage, he promised to use it in a tenant-like manner, laying as a
breach, that he had made holes in the walls, etc.; one demise only as
to one house was proved; it was held that damages could not be re-
covered on both counts, as they must be taken to refer to different
messuages.”

Sec. 347. Action against the lessor.

Covenants to repair on the part of the lessor present no distinction
as to the amount of damages that may be recovered. In an action
by the tenant on such a covenant, it was held that he could not re-
cover, as special damage, rent, taxes and other sums laid out upon a
house into which the plaintiff was forced to move, while his own was
uninhabitable. Because although the defendant covenanted to
repair, he did not covenant to find him another house while the re-
pairs were going on, any more than he would have been bound to do
so if the premises had been consumed by fire.” But an allowance
might be made for the additional time during which he was obliged to
be in another house, on account of defendant’s delay in commencing
*yepairs.* Where the defendant covenants to repair part of
the premises only, injury done to the other parts by the non-
repair of the former may be recovered, if it resulted from neglect
on the plaintiffs part.’ It was ruled in one case, that if the premi-
ses became more out of repair after the commencement of the action
the jury might consider this in assessing damages.° This, of course,
only applies where the defendant is still liable.

[*238]

' Neale v. Ratcliff, 15 Q. B. 916. 4 Green v. Eales, 2 Q. B. 225.
® Holford v. Dunnett, 7M. & W. 5 Td.
348. § Shortbridge v. Lamplugh, 2 Ld.

3 Green v. Hales, 2 Q. B. 225. Raym. 803; see ante, p. 142.
372 Action on Covenant to Buitp.

Sec. 348. Effect of previous recovery of damages.

In a recent case the action was brought by the assignees of a bank-’
rupt lessee against the representatives of the lessor, for breaches
of covenants to put premises in repair and keep them in repair.
The defendants, inter alia, pleaded to the breach of covenant to
keep in repair, for a defense on equitable grounds, that the lessee
had recovered a sum of 1,080. in an action for breaches of the
covenants to put and keep in repair, and that if he had expended that
sum in putting the premises in repair, the want of repair now com-
plained of would not have existed. Upon demurrer it was held that
this was a bad plea, and that the matters alleged in it did not
amount to a bar of the action, but went in mitigation of damages.’

Sec. 349. Action for breach of building covenants.

Building and mining covenants. For breach of these, the only
criterion is the amount of damage the plaintiff has suffered by the
diminished value of the premises. Plaintiff agreed to let defend-
ant land for ninety-eight years, from 1835, at a pepper-corn rent for
three years, and afterward at 1152. per annum. Defendant was to
build on the ground in three years, and then accept a lease. There
was a proviso for re-entry in case of default. Defendant did not
build, and in 1839 plaintiff got possession of the land. He then de-
mised to B. for the residue of defendant’s term, at a pepper-corn
rent for the year ending midsummer, 1840; 702. for the next year,
and 140/. for the rest of the term. He then sued defendant for
breach of agreement to build; and amongst other things, claimed as
damages the difference between the rent which he would have ob-
tained up to 1841, had defendant kept his agreement, and that which
[#289] he was to obtain from the new tenant: *Held that the jury
were not bound to give him that difference; that the real
measure was the damage he had on the whole sustained, and that in
estimating this they must consider the new agreement he had en-
tered into. Accordingly they found that no damage had accrued
beyond 2/. which had been paid into court.’

Sec. 360. Covenant to mine.
In a later case, the action was on a contract, by which the defend-
ants agreed that if the plaintiff would surrender to his lessor the

‘Coward v. Gregory, L. BR, 2 C. * Oldershaw »v. Holt, 12 Ad. & E.
P, 153; 36 L. J.C. P. 1. 590.
Action on Covenant to Mine. 373

land then in his possession, they would, on obtaining a lease of it to
themselves, sink a shaft to the depth of 130 yards in search of coal,
and if they found a vein of marketable coals, would pay the plain-
tiff 2,5002. The defendants never sank a shaft. Evidence was
given that if a shaft had been sunk to the depth of 130 yards, a vein
of marketable coal would have been found; the cost of such a shaft
would have been 2,600. The judge told the jury, that the plaintiff
had a right to have a pit sunk to the depth agreed on at the defend-
ants’ cost, and that they ought either to estimate the damages with
reference to the expense of so doing, or might give the amount
which would have become payable on the contingency. A verdict
was given for 2,5007. A rule to enter nominal damages was re-
fused. Poxtock, C. B., Arprrson, B., and Marry, B., gave no
opinion as to which alternative in the judge’s ruling was most cor-
rect. Parxs, B., inclined to think that the expense of sinking the
pit was a wrong criterion of damage, because the plaintiff could not
go upon the land and make it. But at all events, he said, this was
a case for more than nominal damages; and as the defendants had
been instrumental in preventing the discovery of marketable coal,
they ought to pay the plaintiff such an amount as he had lost by
their neglect to perform the covenant.’ If this had been a covenant
between the lessor and the lessee of the mine, Baron Parxe’s objec-
tion would of course fail, since at the expiration of the lease he
could himself sink the pit.. As long as there was any chance that a
mine might be found, he would obviously be entitled to the cost of
the shaft, which the defendant had undertaken to make at his own
expense. But suppose all *possibility of a mine being found,
and therefore of any advantage being derivable from the
shaft, could be negatived, what would be the damages then? None
could be given in respect of the payment of 2,500/., because, by the
hypothesis, it could never become due. Then the damages would
be measured by the loss he had sustained by not having a shaft
sunk, free of charge, in his own land. It is hard to see that more
than nominal damages could be recovered for this; since here also,
by the hypothesis, no damage could accrue from breach of the cove-
nant, as no benefit would flow from its performance.

[*240]

"Pell », Shearman, 10 Ex. 766.
374 Action on Covenant to pay Renewau Fine.

Sec. 351. Covenant to pay renewal fine.

There are various cases in which the occupier of land covenants
to make certain payments, connected with his interest in it.

Covenants to pay renewal fine. When the plaintiff held an arch-
bishop’s lease, renewable from time to time by payment of fines,
and demised to the defendant for a term, the latter covenanting
that he would from time to time, and at every time during the said
term, pay to plaintiff or the archbishop, such part of the fine or
fees which, upon every renewal of the lease by which plaintiff held
the premises, should be paid or payable by plaintiff in respect of the
premises demised to defendant. Plaintiff renewed for a longer
period than the term demised by him tothe defendant. And it
was ruled that the latter was only liable for a part of the fines, com-
mensurate with the interest which defendant now acquired in the
premises.

Sec. 352. Covenant to insure where no loss has occurred. Charles v. Altin.

Covenant toinsure. In an action for breach of this covenant, the
plaintiff, who had himself paid the insurance premium, was held en-
titled to recover it back from the defendant as damages, no special
loss having occurred.’ In this case the plaintiff was himself a les-
see, bound by covenant to insure, and the defendant was his assig-
nee, who had taken subject to the original covenants, so that the
payment by the plaintiff was necessary for his own safety. Even
in the ordinary case of lessor and lessee, the same rule would, it is
conceived, hold good. If the plaintiff has paid the insurance pre-
miums, he ought to recover their amount; because, as he is entitled
to the protection of an insurance policy, he is also *entitled
to adopt such means as may keep it on foot. If, however, he
has not paid the premiums, then the question is how much is the
reversion the worse by reason of the lapse or non-existence of such
a policy; no loss having as yet occurred? The answer to this
would seem to be, that the loss to the reversion is measured by the
amount which it would cost the plaintiff to put himself into the
same position as he wonld now be in, had the defendant kept his
contract. If no insurance has been effected, this amount would

[#241]

' Charlton ». Driver;2 B. & B. 2 Hey vo. Wyche, 12 L. J. Q. B. 88.
345.
Aortons on Covenants to Insure. 875

consist of the cost of entering into one; that is, all the charges
which a party has to incur at starting, before his next premium falls
due. If a policy has been effected, then the arrears of premiums
(if the office will accept them), or the cost of a new policy, which-
ever ischeaper. It seems plain that this is all to which the plaintiff
is entitled; he can claim nothing in respect of the past risk, for this
is over; nor in respect of past payments, for he has made none.
The cost of commencing an insurance will, at any moment, secure
him against risk till default made in paying the premiums; and
when this takes place, he may pay them himself, and recover their
amount as damages. .
These views are to a considerable extent confirmed by the court
of common pleas, in a case where the question incidentally arose.
It was agreed by the terms of a charter-party, that the charterers
should pay one-third of the freight in advance—the same to be
returned if the vessel did not reach her destination — the charterers
to insure the amount at the owner’s expense, and deduct the cost of
so doing from the first payment of freight. The charterers paid the
one-third freight, deducting insurance premium. The vessel and
cargo never arrived. The charterers sued for a return of the
freight. The owners pleaded that if the insurance had been prop-
erly effected, it would have indemnified them against the loss of
the one-third freight stipulated to be returned ; but that by the neg-
ligence of the charterers in deviating from the usual course of busi-
ness in effecting the insurance, the insurance had become worthless,
consequently, that the defendants had a right of action against the
plaintiffs to exactly the same amount as that which the plaintiffs had
against them. This, if true, would have made the plea good, in.
avoidance of circuity of action. *It was held bad, on the [#949]
ground that damages for negligence in insuring were not
necessarily the same as the freight to be returned. Mauts, J., said:
“T do not think that the concluding allegation sufficiently identifies
the sum mentioned in the plea with that sought to be recovered by
the declaration. That which is complained of in the plea would
give the defendants a right of action against the plaintiffs, so soon
as they were guilty of the negligence charged, and the defendant
was thereby damnified. That which happened subsequently does
not necessarily determine the amount of damages the defendant
376 Actions on Covenants To Insure.

would be entitled to. A jury might have given exactly the same
amount of damages before as after the loss. The question is, what
damage has the party sustained at the time the cause of action
vested in him? If nothing had happened, and a policy might then
have been effected, the jury would consider what was probable; if
the loss had then happened, they perhaps might have given the full
amount; but they were not bound to do so. There were a variety
of circumstances which they might properly take into their consid-
eration. Therefore, it is not a necessary and conclusive thing that
the sum be insured by the policy neither more nor less, is the sum
which the plaintiffs would have to pay; but a compensation for the
inj ury resulting from their negligence.” “Perhaps, after the loss,
they would be bound not to give more than the amount of the
actual loss, when no greater loss could happen.”* It will be
observed that it was not necessary for the court to lay down posi-
tively what the measure of damages would be, where the action was
brotight before a loss had arisen. It was sufficient for their purpose
to show that they were not necessarily the full amount of the
policy.” This will account for the absence of any direct and posi-
tive assertion as to the rule of law in such a case.

Sec. 353. Where a loss has occurred.

There seems, on principle, no reason to doubt that, after a loss had
occurred, the measure of damages would be the exact value of the
thing lost, which ought to have been insured. A later case expressly
decides the point. R., the *owner of a saw-mill, received
from B. timber to be sawed. An agreement was made as to

its being kept insured by R., as to which varying evidence was
given. According to one account, the agreement was, that R.
should hold all B.’s timber insured from fire, and should pay its
value if burnt. According to another account, the whole substance
of what passed as to insurance was that the goods should be always
insured from fire. No written memorandum was made— no par-
ticular office was mentioned — no time for insurance was mentioned,
nor any particular amount. No insurance was effected. The goods
were burnt, and R. became bankrupt. _B. applied to prove for the
value of the timber. His right depended upon the question,

[*243)

'Charles », Altin, 15 C. B. 46, 65; * So in Cahill o, Dawson, 3 C. B. (N.
23 L. J.C. P. 197, 204. S.) 106; 26 L. J. ©. P. 253,
Aotions on Covenants to Insure. 377

whether his claim was for an ascertained amount, or for unliquidated
damages. It was decided on appeal to the lord justices that his
claim was admissible. The court held that on the whole evidence
they were satisfied that there was a contract on the part of the bank-
rupt to make good the value of the timber. L. J. Turner, how-
ever, added: “In any event it seems to be clear that there was a
contract on the part of the bankrupt to insure the petitioner’s tim-
ber, and that this insurance was to be made for the purpose of
securing to the petitioner the value of his timber, in case it should
be destroyed by fire; and, under such circumstances, I apprehend
that the value of the timber would be the measure of damages in
an action for breach of the contract.” This being so, and the value
of the timber being an ascertained thing in the market, the amount
of the claim of course became a mere matter of account.’

Sec. 354, Loans secured by assignment of policy.

Loans by insurance companies are frequently secured by the
assignment of a policy effected with the company by the borrower,
who covgnants to keep up the policy by paying the premiums.
Upon his failing to do so, companies have claimed to be entitled to
recover in an action for breach of covenant the amount of unpaid
premiums, but it has been *held that this is not the proper
measure of damages. If the company has effected a fresh
insurance, and paid the premiums to other insurers, they may be
entitled to recover what they. have paid, but being themselves the
insurers, their real damage is the loss of the security. How this is
to be estimated has not be suggested, but in the absence of any
expense shown to have been caused by the breach, nominal damages
have been held to be alone recoverable.’

[*244]

1 Ex parte Bateman, 20 Jur. 265; 25 27 L. J.C. P. 290. In this last case

L. J. Bkcy. 19; approved by Erez, C.
J., Betteley o. Stainsby, 12 C. B. (N.
8.) 499; 31 L. J. C.eP. 342. In
Upper Canada it has been on this
principle laid down that the measure
of damages is the value of the prem-
ises lost to the plaintiff by the neglect
to insure, not exceeding the sum in
which the defendant was to have
insured by his covenant. Douglass ».
Murphy, 16 Upper Canada Q. B. 118.

?National Assurance Co. v. Best, 2
H. & N. 605; 27 L. J. Ex. 19;
Browne v. Price, 4 C. B. (N. 8.) 598;

48

the deed provided that unpaid pre-
miums paid by the plaintiffs should be
added to the principal debt and
charged upon the land, but contained
no covenant by the defendant to repay
premiums paid by them. See also
Warburg v. Tucker, E. B. & E. 914;
28 L. J. Q. B. 56, in Ex. Ch. A mort-
gagee cannot insure and add the pre-
miums to his mortgage debt, in the
absence of an express contract author-
izing him to do so. Brooke v. Stone,
34.L. J. Ch. 251.
378 Actions on CovENANTS TO Pay RATEs.

Sec. 355. Forfeiture of policy.

Where a deed by which the defendant assigned to the plaintiffs a
policy of insurance upon his own life contained a covenant that he
would not do any thing by which the policy should be forfeited, and
a forfeiture was caused by the defendant’s going beyond the limits
of Europe without the license of the assurers, the damages were
assessed upon the present value of the policy, to be assessed by an
actuary, taking into consideration that the defendant covenanted to
pay and should pay premiums on the policy.’

Sec. 356. Covenant to pay rates.

A covenant to pay rates is broken as soon as the rates are due,
though no demand has been made.” I can find no case in which
any rule is laid down about the measure of damages in such an
action. There would of course be a broad distinction, according as
the rates were primarily payable by the person who covenants to pay
them or not. For instance, if the landlord covenanted to pay what
was usually tenant’s taxes, this would be similar to a covenant to
pay off incumbrances, and the whole amount of the tax*would be
recoverable, even though none had been paid by the tenant.
*On the other hand the tenant may covenant to pay his
own taxes, for which the landlord is not liable at all, except
by means of legal process against his house. This would seem to
be analogous to a covenant to repair, and the measure of damage
would be the injury to the reversion, by having arrears of taxes
due, distresses put in, and the like.

[*245]

Sec. 357. Alternative covenants.

Where there are alternative covenants, and plaintiff declares for
a breach of both, if money is paid, and accepted in satisfaction of
one, the plaintiff is only entitled to nominal damages in respect of
the other.‘

1Hawkins v. Coulthurst, 5 B. &S. 687. As to the mode of estimating

848; 33 L. J. Q.. B. 192. An executor
who dropped a policy on the life of a
debtor to the testator’s estate, without
consulting those beneficially inter-
ested, was held liable for the whole
sum which would have been recovered
if it had kept up the policy. Garner
v. Moore, 38 Drew. 277; 24 L. J. Ch.

the value of policy in a life assurance

company in course of liquidation,

see Holdich’s Case, L. R., 14 Eq. 78.
? Davis v. Burrell, 10 C. B. 821.
3See Lethbridge v. Mytton, 2B. &

Ad. 772; ante, p. 294,

se Foley ». Addenbrooke, 13 M. & W.
Actions ON CovENANT TO GIVE UP Posszssion. 379

Sec. 358. Covenant to deliver up possessicn.

In an action for breach of covenant to give up possession at
the end of a term, the plaintiff can recover only the actual damage
which he has sustained. This was the rule in a case in which the
defendant was tenant to the plaintiff, who was the owner of the
equity of redemption. The lease contained a covenant to deliver
up the premises and all fixtures therein at the expiration of the
term. The term expired on the 1st April. The plaintiff demanded
possession on the 10th, but it was not given. On the 13th April
the mortgagee gave notice to the plaintiff to pay the rent and deliver
up the premises to him. The plaintiff sued the defendant for
breach of covenant in not delivering up the fixtures, and the de-
fendant paid 52. into court, which the jury found to be sufficient to
cover the actual damage sustained by the plaintiff being deprived
of the possession of the fixtures for three days. The plaintiff
claimed to have the verdict entered for him for the full value of the
fixtures, but a rule to that effect was discharged. Marrm, B., said
that the absurd result would follow from the plaintiff's reasoning,
that where a person hired a chattel and agreed to deliver it up on a
certain day, but did not do so, and it, afterward turned out that the
chattel was stolen, and the true owner demanded possession, the
person who lent it might recover the whole value of the stolen
chattel. No doubt he might maintain an action, because the per-
son who hired the chattel agreed to deliver it up on a certain day,
but he would only be entitled to nominal damages. In an action
[#246] on a covenant in a lease to deliver up the land, the *sum to

be recovered would not be the value of the land but the real
damage sustained.'

Sec. 359. Covenant not to assign.
’ In an action for breach of covenant not to assign, an arbitrator
in assessing damages was directed to find such a sum as would, as far -
as money could, put the plaintiff in the same position as if he had
still the defendant’s liability for the breaches of the other covenants,
instead of the liability of a person of inferior ability, and to take
into consideration breaches both past and future.”

1 Watson v. Lane, 11 Ex. 769; 25 L. 2 Williams v. Earle, L. R., 3 Q. B.

J. Ex. 101. See, also, Henderson v. 739; 9B. & 8. 740.
sant, L.B., 4 Q. B.170; 38 L. J. Q.
_B. 738,
380

[*247]

Sec. 360.
361.
362,
363.

364.
365.
366.

367.
368.
369.
370.
371.
372.
373.
374.
375.

376.
377.
378.
379.
3880.
381.
382.
383.
384.
385.

386.
387.
388.
389.

390.

Aotions By CARRIER.

*CHAPTER XVI.

CARRIERS.

-General view.

Land carriage. Packed parcels.

Actions for freight. Where entire ship engaged.

When payment is to be made by the ton, and a fresh cargo is
to be supplied.

Weight, how calculated.

Freight where cargo changes in bulk or weight.

Mode of calculating freight, which has been fixed with reference
to articles that are not carried.

Specified articles unlimited.

Specified articles limited in quantity.

Specified articles of defined weight.

Evidence in reduction of damages.

Breach of contract to supply cargo.

Choice of cargo.

Amount of cargo specified.

Evidence of custom.

Right of charterer who has not supplied a cargo to be allowed
for freight earned afterward.

Where charterer has not become liable to pay penalty.

Improper detention of ship.

Dangerous goods.

Actions against carriers for not taking goods,

Natural result of breach.

Failure to carry passengers.

Delay in carrying.

Reasonable expenses incurred .

Remote damages: Penalty.

Mode of calculating value of goods in actions for loss or injury
to them.

When goods have been sold for repair of ship. Where ship has
arrived. Where not.

Obligation to protect goods.

Undue preference.

Liability of ship-owners for loss caused by pilot; or by fire; or
robbery in certain cases. Wrongful sale.

Limitation of liability for loss of life or personal injury.
Actions BY CARRIERS. 381

Src. 391. Costs of suit.
392. Foreign shipment.
393. Inland navigation.
394. Liability of land carriers at common law.
395. Carrier’s act.
396. Special contract.
397. Provisions of Railway and Canal Traffic Act, 1854.
398. Meaning of word ‘‘ loss.”
399. Value must be declared in the first instance.
400. Fraud in concealing value.
401. Telegraphic messages.

x

Sec. 360. General view.

The extensive commercial transactions of this country render con-
tracts for the conveyance of goods a matter of great and daily im-
portance, and the doctrine of damages, arising out of such contracts,
presents some peculiar considerations.

There are some distinctions, principally statutory, between the
liability of carriers by land and sea, but the whole subject may with-
out confusion be examined in a single view.

Actions may be brought upon a contract of carriage, either by the
carrier, or by the owner of the goods. The former may sue for
the cost of carriage, or for breach of the contract to employ him.
The latter may sue for arefusal to convey the goods, or for their loss
or injury.

Sec. 361. Actions by carriers. Land carriage. Packed parcels.

Actions for the price of carriage are generally much less compli-
cated where the carriage is by land than by sea. A fruitful source
of discussion, however, has sprung up between the railway companies
and other carriers, on the subject of the charges made upon the
latter for carrying goods, collected by them from various customers.
One point of controversy arose out of the packed parcel question,
viz.: the right of the railway companies to impose peculiar terms
upon the carriage of large packages of goods, in which a number of
smaller packages were contained. These cases are so involved in
the particular wording of the private act, authorizing tolls to be
taken, that it would be impossible to attempt a statement of the
facts. The *general rule, however, is laid down beyond ,
doubt, that where the compa: i h parcels for an ae

’ 1 pany carries such parcels for any
of the public, they must carry them for all on the same terms, and
382 Actions For FReieut.

that the fact of their having issued orders, stating that they would
no longer carry them, makes no difference, if, as a matter of fact,
they do continue to carry them for some.' Any overcharge may
be recovered as money had and received to the use of the plaintiff.’

Sec. 362. Actions for freight. Where entire ship engaged.

On the other hand, questions of nicety very often arise in actions
for freight due on account of the various modes in which contracts
for carriage by sea are formed, and the uncertainty that may pre-
vail at the time of the contract as to the species of goods that are to
be conveyed.

Where the entire ship has been engaged at a specific price, or
where a cargo has been loaded at a settled price per ton, of course
the matter is simple enough. In the former case, the whole sum
will be payable, though the merchant only fills part of the ship.

Where the covenant was to pay for hides at so much per pound
net weight at the scales, and it appeared that the packages were
wrapped in hides of an inferior quality, which are generally some-
what damaged, and the evidence varied as to whether freight was
paid for them or not, and whether they paid duty: held that they
must pay both freight and duty.‘

Sec. 363. When payment is to be made by the ton, and a full cargo is to be
supplied.

Where an entire ship, of a certain specified burden, is hired, and
the charterer agrees to pay a certain sum for every ton of goods
which he shall have on board, but does not agree to supply a full
cargo, he is only liable for the actual amount carried.*

} Parker v. G. W. Ry. Co., 7 M. & railway companies are bound upon ap-
Gr. 253; 11 C. B. 545; Edwards »v. plication to furnish accounts showing
G. W. Ry. Co., id. 588; Crouch » how much of their charge is for con-
G.N. Ry. Co., 9 Ex. Ch. 556; Crouch veyance of goods upon the railway, and
o. L. & N. W. Ry. Co., 14 C. B. 255; how much for collection, delivery, and
Baxendale v. G. W. Ry. Co.,.14 C, B. other expenses,

(N.8.) 1; 82 L. J. C. P.225; and 16 C. 2 Td.

BA(N. 8.)137; 33 L. J. C. P. 197, in Ex. * Abbott on Shipping, 410; 367, 11th
Ch, ; Baxendale v. L. &S. W. Ry. Co., ed.; Robinson o. Knights, L. R., 8 C.
L. R., 1 Ex. 137; 85 L. J. Ex. 108;4 P. 465; 421. J. ©. P. 211.

H. & C. 130; Sutton v. G. W. Ry. Co., *Moorsom ». Page, 4 Camp. 103.

3 id. 800; 35 L. J. Ex. 18; affirmed, ° James (Lady) v. East India Co.
L. R., 4 H. L. 226; 38 L. J. Ex. 177. Abbott on Shipping, 412; 368 11th
Under the regulation of railways act, ed. :
1868, 31 & 32 Vict., ch. 119, § 17,

4
Actions ror FRrrigat. 383

*On the other hand, where he does agree to supply a full
cargo, his liability is not limited to the tonnage expressed in
the charter-party ; and the burden being described as 261 tons or
thereabouts, whereas the vessel would really have held 400 tons, it
was held that the merchant must pay for the entire amount she
could have stowed. Of course, if there was a fraudulent represen-
tation it would be different.!. If part of the cargo has been deliv-
ered to, and received by the consignees, freight is payable upon it,
even though the rest has not been delivered, and though it has not
been landed at the port named in the charter-party, but at some
other port to which the consignee directed the captain to come.’

[#249]

Sec. 364. Weight, how calculated.

In the absence of any special contract, it is said that freight pay-
able by weight is to be calculated upon the net weight, as ascer-
tained at the king’s landing scales, and not according to that expressed
in the bill of lading.* But where the bill of lading was of 100 lasts
of wheat, in 2,092 bags, upon which freight was to be paid at 141.
sterling per last; the bill of lading bore date Dantzic; no evidence
was given that the corn was measured at Dantzic by either ‘party,
but it appeared that the Dantzic last was much larger than the Eng-
lish, and that the English last was the one by which the defendant
had purchased. The plaintiff, therefore, sought to be paid freight
for 100 lasts, which the cargo was believed to amount to in English
measure, and which were expressed in the bill of lading. The
defendant, on the other hand, claimed only to pay freight on such a
reduced number of lasts as the whole cargo would amount to if
measured by the Dantzic.scale: Held, that no evidence was admis
sible to vary the written contract, which stated the number of lasts to
be 100, and that the plaintiff's mode of calculation was the true one.*

Sec. 365. Freight where cargo changes in bulk or weight.
Goods sometimes change in bulk or weight during a voyage or
after delivery. In such cases it has been laid down that, special con-

1 Hunter o. Fry, 2B. & Ald. 421; the rest of the cargo arose from re-
Thomas v. Clarke, 2 Stark. 452; straint of princes, a peril excepted
Barker 0. Windle, 6 E. & B. 675; 25 against.

L. J. Q. B. 349. 3 Geraldes v. Donison, Holt’s N. P.

? Christy v. Row, 1 Taunt. 300. 346.

In that case the non-arrival atthe 4 Moller o. Living, 4 Taunt. 102.
tigbt port, and the non-delivery of
384 Actions For FREIgHt.

[#950] tract and usage of trade apart, freight is to be *calculated and
paid on that amount only which is put on board, carried
throughout the whole voyage, and delivered to the merchant.’
Thus, where wheat increased in bulk from being wetted during the
voyage, freight was recovered on the quantity shipped, and not on
that delivered.” And so where cotton shipped in compressed bales
expanded on being unloaded.’ u

Sec. 366. Mode of calculating freight, which has been fixed with reference to
articles that are not carried.

A case which has on several occasions caused a good deal of
debate, is that in which the rate of freight has been fixed with a
view to certain articles, and either none or only some of these have
been actually carried. The question has then been: What freight
was payable on the remaining articles? The rule seems now, how-
ever, to be established as follows: Where a charter-party provides
for the carriage of various classes of goods at specified rates, and
gives no permission for the substitution of other goods; or permits,
but does not provide a scale of payment for such substituted goods ;
in either case, the freight payable in respect of them is calculated
upon an average of what would have been earned, by carrying a
similar amount of all the enumerated articles in equal quantities.*

But where some of the enumerated articles are limited as to the
amount which may be carried, and that amount has been reached,
the freight of the non-enumerated articles can only be calculated on
an average of the remaining articles.° And in all cases where a

1 Gibson v. Sturge, 10 Ex. 622; 24
L. J. Ex. 121; Buckle ». Knoop, L.
R., 2 Ex. 888; 36 L. J. Ex. 228, in
Ex. Ch. In both of these cases the
cargo had increased in bulk. WILLEs,
J.,in his elaborate judgment in Dakin
». Oxley, 15 C. B. (N. 8.) 646; 33 L.
J. C. P. 115, after mentioning the
rule as applicable to cases where the
cargo has accidentally swelled, speaks
of it as “perhaps” applying where
the cargo has diminished, and draws
attention to some arbitrary provisions

in foreign codes respecting loss of-

liquids. In the West India trade,
freight of sugar and molasses is said
to be regulated by the weight of the
casks at the port of delivery, the loss
of freight by leakage falling on the

owners of the ship. Abbott on Ship-
ping, p. 382, 11th ed. This would
seem to follow naturally from the rule
laid down in Gibson 2. Sturge, that to
constitute a title to freight, the com-
modity must be ‘‘shipped, carried,
and delivered.”

* Gibson v. Sturge, supra.

3 Buckle o. Knoop, supra. In that
case it was found to be usual to ship
cotton at Bombay in compressed
bales. In Coulthurst v. Sweet, L. R.,
1C. P. 649, there were express words
making the freight payable per ton,
“net weight delivered.”

* Capper v. Forster, 3 B. N. C. 938.
at Cockburn ». Alexander, 6 C. B.
Aotions For Frerigut. 385

particular class of goods are to be calculated according to a particu-
lar scale of bulk, etc., that scale *must be applied in estimat-
ing the freight, though, were it not for the agreement, it
would furnish an incorrect standard of measurement.!

[*251]

Sec. 367. Specified articles unlimited.

The effects of the above three classes of cases were these: 1. A
charter-party provided that the merchant should ship a full and com-
plete cargo of lawful merchandise, which was to be delivered up on
being paid freight as follows, viz.: for gum, bees-wax, ivory and
palm oil, 47. per ton; hides 77. per ton; rice 37. per ton. A full
cargo was not shipped, and it was held on the authority of Thomas
v. Clark,” that the same rule should be applied to a deficient cargo as
to none at all, and that the short-coming should be calculated by an

average of what might have been shipped of all of the articles
specified.®

Sec. 368. Specific articles limited in quantity.

2. Covenant to load a full cargo of wool, tallow, bark or other
legal merchandise, the entire quantity of bark not to exceed 100 tons
and the quantity of tallow and hides not to exceed 80, to be delivered
up on being paid freight as follows: pressed wool 1$d. per pound ;
unpressed 1£d. per pound ; tallow 82. per ton ; bark, 40. per ton; and
hides, 22. per ton; the latter not to exceed 20 tons, without the consent
of the captain. She brought home less than the stipulated quantity
of some of the articles, more of others, and some not named at all,
Held, that the owners were entitled to payment as if she had brought
home the full amount of the enumerated goods, viz., 100 tons of bark,
60 of tallow, and 20 of hides, and the remainder wool pressed or
nnpressed.*

Sec. 369. Specified articles of defined weight.

3. In the last case there was a proviso for shipment of a full cargo
of produce, freight to be paid at and after the rate of 5s. 6d. per
barrel of flour, meal and naval stores, and 11s. per quarter of 480
pounds of Indian,or other grain. The cargo was not to consist of
less than 3,000 barrels of flour, meal or naval stores, and not less

1 Warren v. Peabody, 8 C. B. 800. 3 Capper v. Forster, 3 B. N. C. 988.
* 2 Stark. 450. 4 Cockburn ». Alexander, ubi sup.

49
386 Actions By CARRIERS.

flour or meal than naval stores was to be shipped. The full amount
of flour, meal and naval stores was not shipped, other articles were
among them 2,000 bushels of oats. A quarter of the latter weighed
[#259] less, and *occupied more room, than Indian corn. It was

held that the owner was entitled to freight, as if the stipu-
lated amount of flour, meal and naval stores, in their respective por-
tions, had been put on board, and the remainder of the space had
been filled with grain, averaging 480 pounds to the quarter and paying
11s.

Sec. 370. Evidence in reduction of damages.

Where there isan agreement for a specific freight, no evidence can
be given of a deficient performance of contract not amounting to
breach of condition precedent, with a view to reduce the damages ;
though it would be otherwise if the action were on a guantwm mer-
uit. For instance, evidence cannot be offered of a deviation
which caused delay and expense.” Nor of injury caused to the
contents of some of the packages by the negligence of the master
in not ventilating them sufficiently." And where the freighter
engages a ship for a certain time, the owner to keep her in
repair, he cannot claim to deduct from the freight any time during
which she is under repairs, and, therefore, lying idle.’ So,
where there is an agreement to pay pilotage and port charges, for
an entire voyage, and only part of the cargo is delivered, if this is
received, the whole of the charges must be paid, and there can be no
apportionment.’ Nor can the value of missing goods be deducted
from the freight payable in respect of goods delivered.’ And where
the entire ship is engaged for the,carriage of a cargo, and alump sum
is agreed on as freight, to be paid after entire discharge and right
delivery of the cargo, if part of the cargo is lost from fire, perils of
the sea, or other cause, not attributable to master or crew, the ship-

1,Warren v. Peabody, 8 C. B. 800.
Bornmann v, Tooke, 1 Camp.
377.

8 Davidson ». Gwynne, 12 Hast, 381.
A set-off for culpable damage in an
action for freight is allowed in some
of the United States, Dakin v. Oxley,
15 0. B. (N. 8.) 667; 33 L.J. C. P.120,
per WiuuEs, J., citing 1 Parsons on
Mercantile Law, 172 n. If the dam-

age amounts to absolute destruction,
the ship-owners are not ready to de-
liver, and therefore cannot sue for
freight. Duthie » Hilton, L. R., 4
C. P. 188.

4 Havelock », Geddes, 10 East, 555;
Ripley ». Scaife, 5 B. & C. 167.

Christy v. Row, 1 Taunt. 300.

5 Meyer v. Dresser, 16C..B. oe 8.)

646; 83 L. J. CO. P. 289.
+

Actions ror not Suprpiyrine Cargo. 887

owner is entitled to his entire freight, without any deduction for the
portion that has been lost.’

*But damages for injuries which are not strictly matters of
set-off or deduction can now-be recovered by proper counter-
claims.

[#253]

Sec. 371. Breach of contract to supply cargo.

In actions for supplying no cargo, or an incomplete one, the meas-
ure of damage is the difference between what the plaintiff would
have earned if the contract had been fulfilled, and that which he
has earned, notwithstanding the breach.’

The amount which he would have earned is open to the same
questions, and decided upon the same principles, as the amount of
freight payable.” Upon this point, Mavts, J., says, in Cockburn v.
Alexander,’ “It may be that in cases of this sort, different amounts
might, under different states of circumstances, be the proper measure
of damage.” “If you could show that there were goods which the
charterer might have obtained, then the proper measure of damages
would be the non-shipment of that cargo. But if there were none,
it may be that in ascertaining the damage an average is to be taken
of all kinds of goods. It is in that way I think that Lord TrnrEr-
DEN arrived at the opinion he expressed in Thomas v. Clarke, viz.,
that where there is no cargo at all to be had, the average is to be
taken of all possible kinds of cargo; that is, that you are to assume,
contrary to the fact, that there are goods of each of the kinds enu-
merated, because the obtaining goods of any one kind, where none
are in truth obtained, cannot a priori be considered as more prob-
able than the obtaining of any of the others.” But, whatever may
be the default. made by the charterer, the captain is still bound to
do his best to obtain freight, and where after breach by the defend-

1 The Norway, 3 Moo. P. C. (N. 8.)
245; Robinson v. Knights, L. R., 8
C. P. 465; 42 L. J. C. P. 211; Mer-
chant Shipping Co. v. Armitage, L.
R,9 Q. B. 99; 43 L. J. Q. B. 24.
See, too, Stewart v. Rogerson, L. R.,
6 C. P. 424; where it was held that
on a refusal to accept cargo the meas-
ure of damages was the full freight
payable; and that this would not be
affected even by a subsequent inability
to deliver the cargo.

® Hunter v. Fry, 2B. & Ald. 421,
424, et seg. In calculating net earn-
ings, the expenses must be deducted.
Smith v. McGuire, 3 H. & N. 554; 27
L. J. Ex. 465; McLean v, Fleming, L.
R., 2 Sc. & D. 128; Morris v. Levison,
1C. P. D. 155,45 L. J.C. P 409.

3 See as to cases where a scale of
freight is fixed for certain articles
which are not actually carried, or not
to the stipulated extent. Thomas v.
Clarke, 2 Stark. 450, and ante, p. 384.

46 C. B. 814.
888 ‘ Actions By CARRIERS.

ant he has refused an offer, the measure of damages is what the

charterer ought to have paid, minus what the owner might have got.

[#954] *But he is not bound to accept any offer before the final
breach by the defendant.!

Sec. 372. Choice of cargo.

Where the charter-party allows the freighter to load several dif-
ferent species of goods alternatively, he may fill up the load with
any he pleases, though in the way least beneficial to the owner, pro-
vided he does not exceed the limits specified, if any. Of course, if
he does exceed those limits, he may pay as if the cargo in excess was
of a nature permitted. Covenant to take on board a full cargo of
copper, tallow, and hides, or other goods, but not more than fifty
tons of copper and tallow, nor more than fifteen tons of copper ;
covenant to furnish a full cargo of copper, tallow and hides, or
other goods, as above-mentioned at certain rates. Defendant pro-
vided a quantity of tallow, and as much hides as the vessel could
carry, but no copper. In consequence, she had to keep in her bal-
last, the place of which might have been supplied by the copper,
and lost so much freight, for which the action was brought. Lord
ExtenzorovueH said: “The parties very likely intended that copper
should necessarily form a part of the cargo, but they have not said
so. The ‘covenant leaves a latitude to the freighter to furnish a
cargo of ‘ copper, tallow, hides, or other goods.’ Therefore, if the
ship had as large a quantity of tallow and hides as she could take on
board, I think the covenant has been performed.”’ It will be ob-
served that the plaintiff sought to obtain not only a full cargo,
which he had, but something more, viz., to turn the ballast, which
is generally waste weight, into productive freight. Now, as Tin-
paL, C. J., remarked in Irving v. Clegg,’ “it is the duty of the
owner to find proper ballast for the ship.” And any agreement
which would have the effect of transferring this obligation to the
charterer would ‘be interpreted very strictly. In the last-named

1 Harries ». Edmonds, 1 C. & K. tohave deducted. It has been said
686, per Parke, B. In Smith v. that if the captain’s conduct has been
McGuire, ubi supra, Martin, B., de- unreasonable, the jury may diminish
clined to say that the captain was the damages on that account. Wilson
bound to look for employment for his », Hicks, 26 L. J. Ex. 242.
ship, though whatever the ship did * Moorsom », Page, 4 Camp, 103..
earn the defendant would be entitled *12B.N. 0.58.
Actions on Contracts to Suppty Cargo. 889

case it was agreed that the freighter should ship a full cargo of cer-
tain specified goods: “100 tons of rice or sugar to be shipped
*previous to any other part of the loading, to ballast the ves- [#255]
sel.” The 100 tons were shipped, but were not sufficient for
ballast, and the owner had to take on board thirty-six tons of stones.
It was held that the freighter had done his duty in loading the 100
tons; that the agreement with regard to them was for the benefit of
the owner in insuring him a freight for what would otherwise be
unproductive, but that, except so far as the special agreement ex-
tended, it left his obligation to find ballast just as it was at first.’

Sec. 373. Amount of cargo specified.

Where a charter-party provided that a ship should load “ full and
complete cargo, say about 1,100 tons ;” it was held that these were
not words of expectation but of contract, and meant that if the ship
held less than 1,100 tons the charterer’s obligation was to be satisfied
by loading a full cargo, but that if she was of greater capacity than
1,100 tons, the ship-owner would be content with about 1,100 tonsas
a full cargo. The capacity of the ship turned out to be 1,210 tons,
while the charterer only provided 1,080. The ship-owner claimed
payment on the difference. The court, applying the above con-
struction of the contract, ruled that3 per cent above the 1,100 tons
was a fair allowance to be made in favor of the ship-owner and that
he was entitled not to the full amount which he claimed, but to a
freight calculated on the difference between 1,080 tons actually
loaded, and 1,133 the estimated capacity of the ship.?

Sec. 374. Evidence of custom.

If there is a known and recognized custom of loading, at the port

to which the charter-party refers,

11 B. N. OC. 53, 58 And see
Southampton Steam Colliery Co. ov.
Clarke, L. R., 4 Ex. 73; 88 L. J. Ex.
54; affirmed in Ex. Ch. L. R., 6 Ex.
53: 40 L. J. Ex. 8 Whether in ad-
dition to the cargo the charterer is
bound to fill up with broken stowage,
depends on the terms of the charter-
party. Cole v. Meek, 15 C.B.(N. 8.)
795; 33 L. J. C. P. "183; Duckett v.

this custom will, according to the

Satterfield, L. R., oe C. P. 227; 87 L.
J. 0. P. 144.

2 Morris v. Tiesaet 1C. P. D, 155;
45 L. J.C. P. 409. Where a party
fails to furnish freight for a boat, ac-
cording to agreement, the measure of
damages, in an action against him, is
the price agreed to be paid, unless he
can show that the damages actually
sustained were less. Dean v. Ritter,
18 Mo. 182.
890 Actions By Carriers.

well-known rule of evidence,! be incorporated in the contract, and,
if departed from, to the loss of the owner, damages will be esti-
mated accordingly. Accordingly, where, by the practice of the
port, cotton bales for exportation were always compressed by ma-
chinery, the furnishing a cargo of *uncompressed cotton bales was
[#256] held not to be a compliance with the contract to load a full

cargo. The same charter-party gave the freighter an option
either to load the whole ship with cotton at a high freight, or part
of it with cotton, and the remainder with rice at a lower freight.
The latter, if loaded at all, would have to be put on board first. It
was held that by beginning to load with. cotton, the freighter had
elected to furnish a full cargo of it, and that damages for not sup-
plying such a cargo must be estimated at a higher freight.°

Sec. 375. Right of charterer who has not supplied a cargo to be allowed for
freight earned afterward.

Sometimes there*is a stipulation that in case the charterer cannot
find a cargo, he shall pay a certain sum, and in such cases
questions often arise as to his right to be allowed for freight subse-
quently earned by the ship. It would appear from the cases, that
where the right of the ship-owner to the sum specified has once ab-
solutely vested, he may earn as much as he can, and retain it over
and above the payment from the charterer. A ship was freighted
for a voyage to Petersburg and back at so much per ton measure-
ment. She wasto take a single cargo of lead out, and to bring home
areturn cargo. If from political circumstances she should remain
forty days at Petersburg without the outward cargo being unloaded
and consequently without the return cargo being loaded, the captain
was to return to England, and be paid a gross sum, which was less
than the money payable per ton. The cargo could not be unloaded
and the captain returned as agreed, bringing back the lead, but on
his way home he obtained further freight, and earned money. Held,
that he was entitled to retain it. On the Whole construction of the
charter-party it was considered to amount to an alternative agree-
ment, either to load a return cargo, and pay so much per ton, or to

?Taylor on Hv. 767. See p. 1009 * Benson ». Schneider, 7 Taunt.
et seqg., 6th ed. 272. And see Buckle v. Knoop, ante,
A * Wallace v. Small, cited 1 BN. p. 384.

. 55,
Actions ror not Suprriyine Cargo. 391

pay @ gross sum for the conveyance of the lead to Petersburg and
back again. In the latter evént there was no reason why the cap-
tain should not earn what else he could by taking other people’s
goods on board for his own benefit.1. On the other hand, where,
under a similar state of things, the master, instead of bringing the
goods home, sold them at Stockholm, *and brought home [#987]
another cargo, upon which he earned freight, it was held that
the amount so earned must be deducted from the amount payable by
the freighters.” With regard to this case, Mansrimxp, C. J., says,’
“ For aught that appears the means which the captain had of ob-
taining any freight of Stockholm might arise from the use he made
of the lead there ; and on that account perhaps the court of King’s
bench might think that the captain who had not been authorized, or
directed to act thus, but had done all this for his own benefit, should
not be entitled to that profit, leaving the underwriters to pay
the whole 2,5002.” Should such a case recur, the question will prob-
ably be, whether the captain was bound to bring back the cargo, as
it seems to have been assumed in the above cases he was. If so,
any money earned by not bringing it home would clearly be earned
for the benefit of the freighters, if they chose to ratify his act. If,
however, there was nothing to prevent him putting the goods on
shore, or throwing them overboard, unless received from him, it is
hard to see what difference it could make as to freight of the goods
substituted, that they had been sold instead of cast away.

Sec. 376. Where charterer has not become liable to pay penalty.

If, however, the freighters have not followed the agreement in
such a manner as to entitle themselves to pay the stipulated sum in
full discharge of all damage, their case will return to the ordinary
rules, and while they on the one hand may become liable to pay
more than that sum, so the owners may be entitled to demand less.
The defendants chartered a ship to New Zealand, and it was agreed
that they were to load her there, or by their agent to give notice
that they abandoned the adventure, in which case they were to pay
5002. On the ship’s arrival there was no agent of theirs, either to
supply a cargo or to abandon the adventure. The captain waited
the prescribed time, and then went in search of freight, and ulti-

? Bell v. Puller, 2 Taunt. 285. 32 Taunt. 300.
° Puller o, Staniforth, 11 Hast, 232.
392 Actions By CARRIERS.

mately obtained a cargo far more remunerative than that which the
defendants were bound to supply. He claimed to retain the freight
and to recover the 5002. also. It was held, however, 1st, that if the
defendants had given due notice of abandonment, their obligation
[#258] to pay the 5007. would have *become absolute, and that

while the plaintiff could have recovered no more, whatever
his loss had been, they could have claimed no reduction on account
of his gains. 2nd, That as no notice of abandonment had been
given, their right to close the transaction by payment of 5007. had
never attached, nor on the other hand the right of the plaintiff to
demand this sum. Therefore, the contract remained as if there
had never been such a stipulation. If the plaintiff had lost more
than 500/. he might have recovered more ; but as he had in fact lost
nothing, he was only entitled to nominal damages for the breach of
contract.’

Sec. 317. Improper detention of ship.

If the charterer himself consents to the owner’s making any
profit of his ship, as, for instance, by taking an intermediate trip be-
tween the outward and homeward voyage, no claim to a reduction
of freight can be set up on this account, even though the result of
the indulgence may be that higher freight is payable by the de-
fendaut.’

Claims by the ship-owner against the charterer, for improper deten-
tion of the ship, are generally provided for by the clause regulating
the rates for demurrage.* In cases not so covered, the question will
be: First. What did the charterer undertake to do? Second.
What was the natural result of his failure to doit? A charter-
party provided that a ship should go toa foreign port for cargo,
“and there, in the usual and accustomed manner, load in her regu-
lar turn.” When her turn came the defendant was not ready to load
her, and she was detained eleven days. When her turn came
round again the defendant was ready, but the wind coming on to
blow, and the harbor being crowded the harbor master refused to
allow the ship to go up to load, and she was delayed three days

1 Staniforth o Lyall, 7 Bing. 169. 3 See Sanguinetti v. Pacific Steam
? Wiggins v. Johnston, 14 M.& W. Nav. Co, 2 Q.B. D. 238; French ».
09. : Gerber, 2 C. P, D, 247,
Actions AGaAinst CARRIERS. 5 393

more. Theplaintiff sued on the charter-party claiming damages for
the detention. It was held that the proximate cause of the de-
tention for the three-days was the default of the defendant in not
performing his contract to load in regular turn, and that he was
liable to pay for the three days as well as for the eleven.!

Sec. 378. Dangerous goods.

*There is an implied undertaking on the part of shippers
of goods on board a general ship, that they will not, without
giving notice, ship packages of a dangerous nature, which the ser-
vants of the ship-owner may not, on inspection, be reasonably
expected to know to be of a dangerous nature. In case of such a
shipment causing damage, the ship-owner must compensate the
shippers of other goods sustaining damage, and will have a remedy
against the shipper of the goods which have caused the calamity.’
And so if personal injury is caused to the carrier or his servants,
and it is the probable consequence of not giving notice, the sender
is responsible.” By 29 & 30 Vict., ch. 69, carriers may refuse to

[*259]

1 Jones v. Adamson, 1 Ex. D. 60; 45
L. J. Ex. 64,

? Brass v. Maitland, 6 E. & B. 470,
483; 26 L. J. Q. B.49. The ship-
per’s duty was, by Cromrton, J., lim-
ited to the obligation to take proper
care not to deliver, dangerous goods
without notice.

3Farrant v. Barnes, 11 C. B. (N. 8.)
553; 381 L. J. C. P. 187.

“Tt is clearly a tortious act,” ob-
serves Crompton, J., ‘‘ for the conse-
quences of which shippers are respon-
sible, to ship goods apparently safe
and fit to be carried, and from which
the ship-owner is ignorant that any
danger is likely to arise, without
notice of such goods being dangerous,
if the shipper is aware of such danger.
Such shipment when the scienter is
made out is clearly wrongful and
tortious; but it does not seem that
there is any authority decisive on the
point as to whether the shipper is
liable for shipping dangerous goods
without a communication of their
nature, when neither he nor the ship-
owner are aware of the danger. It
seems very difficult to hold that the
shipper can be liable for not communi-
cating what he does not know.

50

Farrant ». Barnes, 110. B. (N. 8.)
553. Lord ELLENBoROUGH’s dictum,
Williams »v. East Ind. Co., 3 East,
192, would tend to show that knowl-
edge of the party shipping is an’
essential ingredient. I entertain great
doubt whether either the duty or the
warranty extends beyond the cases
where the shipper has knowledge, or
the means of knowledge, of the dan-
gerous nature of the goods when
shipped, or where he has been guilty
of some negligence as shipper, as by
shipping without communicating
danger, which he had the means of
knowing, and ought to have.communi-
cated.” Brass v. Maitland, 6 Ell. &
Bl. 486; Gibbon ». Paynton, 4 Burr.
2298; Batson v. Donovan, 4 B. &
Ald. 33, 387.

The principle or rule of law was
well settled in the case of Williams v.
The East India Company, 3 East, 192,
that a person who delivers to a com-
mon carrier a highly combustible or
explosive compound for transporta-
tion, without notifying him of the
nature of the article, is liable for all
the damages resulting therefrom, and
this doctrine has been recognized and
acted gapon. in numerous cases since.
394

Actions aGamnst CARRIERS.

receive goods declared to be specially dangerous, and penalties are
imposed on persons sending them without notice. |

Sec. 379. Actions against carriers for not taking goods. Damage too remote.

Actions against carriers fall under the heads of actions for not
carrying at all, or for delay in carrying, or for loss of or injury to

The doctrine is predicated upon the
principle that, in such a case, the
shipper owes a duty to the carrier, to
inform him of the character of the
article, in order that he may reject it
if he chooses, or if he receives it, may
exercise proper precaution to prevent
injury to himself or others therefrom,
and where either the property or per-
sons of others may be injured thereby,
the duty is still stronger in a moral,
although in a legal sense it is the
same. The rule is in nowise depend-
ent upon a contract, express or im-
plied, but it is an absolute duty that
the law imposes upon every member
of society, and is expressed in that
time-honored maxim, sie utere tuo
alienum non ledas; Brass v. Maitland,
6 El. & Bl. 470; Farrant ». Barnes,
11 C. B. (N. 8.) 553; Boston & Al-
bany R. R. Co. v. Shanly et al, 107
Mass. 568. The same principle con-
trols in such a case as upheld a re-
covery in Thomas v. Winchester, 6
N. Y, 397, against a druggist, for a
careless sale of a poisonous drug for a
harmless one; in Carter v. Towne, 98
Mass. 567, for an injury to a boy eight
years of age, who was inexperienced
in the use of it, by the explosion of
gunpowder, which the defendant sold
him; and in Wellington ». Downer
Kerosene Oil Co,, 104 Mass. 64, for
knowingly selling naphtha to the
plaintiff, who was ignorant of its ex-
plosive qualities, to be used in a lamp,
and from the explosion of which he
was injured; and in George v. Skiv-
ington, L. R., 5 Exch, 1, against a
chemist for injuries sustained by the
plaintiff's wife, by the use of a hair
wash made by the defendant, and the
ingredients of which were known
only to himself, and which he knew
was to be used by her upon her hair.
Thus, it will be seen, that in the case
of the sale of articles dangerous in
their character, when the vendor is
aware of their dangerous qualitjes, or

ought to be aware of them, an abso-
lute duty is imposed upon him which
he cannot shirk or evade, to see to it
that through no fault of his, injury
ensues to another.

In the case of Boston and Albany
R. R. Co. v. Shanley e¢ al., ante, the
defendants were held liable under the
following circumstances: The Shan-
leys were doing business in North
Adams, Mass., and ordered from one
of the other defendants, ten cases of
dualin—a highly explosive compound
—and from one of the other defend-
ants a quantity of exploders, used in
exploding dualin. The plaintiffs, as
common carriers, received both of
these articles without knowing their
nature, and neither the shipper of the
dualin, or of the exploders, knew
that the two articles were ordered, or
that they were to be shipped together,
but the plaintiff not knowing that
they were dangerous, or having any
knowledge of their nature, or that
there was any danger from combining
the two, received them, and while
being carefully transported over their
line, they exploded, injuring the
property of the carrier, and the prop-
erty of others being transported by it.
It was held that the shippers of the
articles were liable, but that the con-
signee of the articles could not be held
chargeable, as no duty had been
violated by him, as he was not called
upon to make any disclosures to the
carrier. See, also, Barney v. Burn-
stenbinder, 64 Barb, (N. Y,) 212,
where nitro-glycerine was shipped
without notice of its character, and
having sprung a leak, was taken toa
warehouse at San Francisco for exam-
ination, and while being opened, ex-
ploded, damaging the warehouse and
freight therein; it was held that the
shipper was liable, even though the
immediate cause of the explosion was
the opening of the package.
ACTIONS AGAINST CARRIERS.

the goods or persons carried.

395

Many of the decisions upon these

points have already been cited and commented upon.

Damages against the owner of the ship for not taking a cargo are
regulated on exactly the same principles as those against the
freighter for not supplying it, by the amount of damages actually

and necessarily incurred.!

If the freighter could not procure any

other ship, the damages would of course be measured by the injury
suffered, from having his cargo left on his hands; bearing, however,
in mind that in all such cases the damages suffered must be such
as the contracting parties were led to contemplate.” If another ship

' Hunter v. Fry, 2B. & Al, 421, 427;
Walton v, Fothergill, 7 C. & P. 392.

? Hadley ». Baxendale, 9 Ex. 341;
23 L. J. Ex. 179.

Where a common carrier, as a rail-
road company, unlawfully refuses to
receive freight, the measure of dam-
ages is held to -be the difference be-
tween the value of goods at the point
of destination, when they should have
arrived there, and their value at the
same time, at their place of detention,
deducting reasonable charges of trans-
portation; Amory v. McGregor, 15
Johns. (N. Y.) 24; Bracket vo. Me-
Nair, 14 id. 170; Galena, etc., R. R.
Co. v. Rae, 18 Ill. 488; Michigan, etc.,
R. R. Co. v. Caster, 13 Ind. 164;
O’Conner v. Forster, 10 Watts (Penn.),
418; and the same rule prevails fora
_ refusal or failure to convey according to
contract; Laurent v. Vaughn, 30 Vt.
90; Atkisson v. Steamboat Castle Gar-
den, 28 Mo. 124; McGovern ». Lewis,
56 Penn. St. 231; adding interest;
Sherman v. Wells, 28 Barb. (N. Y.)
403; but in Cooper v. Young, 22 Ga.
269, it was held that, where a manu-
facturer suffered loss by reason of a
necessary suspension of business, there
being no other reasonable means of
supply, evidence of the amount of
profit he might have realized from his
business was not admissible. In Cow-
ley -v. Davidson, 18 Minn. 92, in an
action for a breach of a contract to
transport a lot of No. 1 wheat from O.
and deliver it at M. on a certain day,
or deliver other No. 1 wheat in its
stead, it was held that the true meas-
ure of damages was the difference
between No.1 wheat at M. on that
day, and the price of wheat of the

same quality at the same time at
O., with costs of transportation from
O. to M. at the contract rate added,

with interest from the time of breach.

But in Colvin v. Jones, 3 Dana (Ky.),

576, where the defendant agreed with
the plaintiff to carry pork to New Or-

leans and sell it, which he failed to do,

it was held that the measure of dam-
ages was not the value of the pork, or

the price at which it might have been
sold, but the damages which the plain-
tiff actually sustained. See, also, to
the same effect, New Orleans, etc., R.

R. Co.v. Moore, 40 Miss. 39; Reading
v.Donovan, 6 La, Ann. 491. Itis the.
duty of a shipper to use reasonable ef-
forts to procure other carriage for his
freight; Grund v. Pendegrast, 58 Barb.

(N. Y.) 216; upon the ground that it
is the duty of every person to use all
reasonable efforts to prevent loss, and
where other transportation might have
been procured at once, the damages
would be limited to the difference in
the amount of freight paid, and that
which was to have been paid under
the contract, and if the freight paid
was less than, or the same as, that
which was to have been paid under
the contract, no more than nominal
damages could be recovered. Ogden
v. Marshall, 8 N. Y. 340. Where the
carrier delays the delivery of goods, he
is liable for the loss sustained by a fall
in the market between the time when
they ought to have been, and really
were delivered. Jones v. N. ¥. R. R.
Co., 29 Barb. (N. Y.) 633; Sisson v.
Cleveland, etc., R. R. Co., 14 Mich.
489; Weston v. Grand Trunk R. R. Co.,
54 Me. 376; Peet ». Chicago, etc., R.
R. Co., 20 Wis. 624; Kent v. Hudson
396

AcTIONS AGAINST CARRIERS.

could be procured, the damages would be measured by the increased
rate of freight payable, and if such freight was in fact less than
that contraeted for, the damages would of course be merely nominal

for breach of contract.” In all cases, however, *the damages

[#260]

must be the necessary and immediate consequence of the

breach committed. A ship’s husband covenanted to load brandy on
board a ship, and proceed with it to Madeira, and the merchant cov-
enanted to pay freight for it there, and load it with a full cargo

R. BR. R. Co., 22 Barb. (N. Y.) 278.
For a wrongful refusal to deliver, as
well as for a failure to deliver, he is
liable for the value of the goods at the
time and place where he engaged to
deliver them, less the freight; Dean ».
Vaccaro, 2 Head (Tenn.), 488; Taylor
v. Collier, 26 Ga, 122; Perkins v. Port-
land R. R. Co., 47 Me. 573; Wallace
v. Vigus, 4 Blackf. (Ind.) 260; but
where the carrier wrongfully refuses
to, but afterward does deliver the goods,
even though they are consigned to a
manufacturer, and are needed for his
present purposes, he is not liable for
the consequential damages arising
from the delay, or for a loss of profits,

but, is liable for the expense of sending «

to his office the second time therefor.
Waite v. Gilbert,10 Cush. (Mass.) 177.
Although in the case of Cooper v.
Young, cited ante, it was held that the
loss of profits, by reason of the stop-
page of the plaintiff's works by the
carrier’s breach of contract could not
be recovered from him, yet, in alt in-
stances where the carrier has notice of
the specific purposes to which the
goods are to be applied, and the neces-
sity for their delivery by a certain
time, the carrier is liable for all such
damages as are the natural and proxi-
mate result of the breach of his con-
tract, so that they could be said to
have been contemplated by the parties.
This is especially the case as to delay
in the delivery of machinery. In re-
ference to that, the ordinary rule is,
that the carrier is liable for the value
of its use during the period of delay;
Priestley v. Northern Indiana, etc., R.
R. Co., 26 Ill. 205; and if notice of

1 Higginson », Weld, 80 Mass. 165;
Featherston v. Wilkinson, L. R., 8
Ex, 122; 42 L. J. Ex. 78.

the intended use is given, then special
damages, the natural result of such
delay, may be recovered. Priestley .
Indiana, etc., R. R. Co., ante ; Cincin-
nati Chronicle Co. v. White Line
Transportation Co., 1 Cin. Sup. Ct.
(Ohio) 300; Vicksburgh, etc., R. R.
Co. v. Ragsdale, 46 Miss, 458.

Where by reason of delay,the goods
are rendered worthless, as in the case
of perishable goods, ‘or are damaged,
by the weather or ‘otherwise, the car-
rier must respond for the loss, which,
in the one case, will be the full value
of the goods at the place of destina-
tion, less the freight, and in the other
the deterioration in value between the
goods as they are and as they should
have been at the place of destination;
Deming ». Grand Trunk Railway Co.,
48 N. H. 455; and the same rule pre-
vails even where goods are damaged
in the ordinary course of transit, if the
damage does not result from the fault ,
of the shipper, or from the character
of the goods. Stark v. Porter, 4 J. J.
Marsh. (Ky.) 211; Henderson ». Maid
of Orleans, 12 La. Ann. 352; Black v.
Camden, etc., R. R. Co., 45 Barb, (N.
Y.) 40; Lewis ». Ship Success, 18 La.
Ann. 1, Thus, where flour and tur-
pentine were so placed that the flour
came in contact with the turpentine,
and was thereby damaged, it was held
that the measure of recovery was the
difference between the fair market
value of the flour in the condition ine
which it was delivered, and what: its
fair market value would have been if
it had not been injured. Cal. Led-
yard, 1 Sprague (U. 8. C. C.) 530,

*Horne o. Hough, L. R., 9 C. P.
187; 48 L. J. CG. P. 70.
Actions AGAINST CARRIERS. 397

home. The merchant arranged at Madeira to barter the brandy
which he expected for fruit, which was to form the cargo home.
No brandy arrived, in consequence of which he was unable to pro-
cure acargo. The ship’s husband sued and recovered against him
for not supplying cargo. He then sued the ship’s husband for not
bringing the brandy, laying as special damage that by reason of his
not doing so, plaintiff had been unable to procure a return cargo,
and in this way he claimed to recover the amount paid in the former
action and its costs. It was held that such damage was too remote,
and Trinpat, O. J., said: “If I contract to transfer stock, and do
not, the party with whom I contracted has no right to tell mea
month afterward that if I had transferred the stock he could have
bought an estate with the money. There was the case of a man
who brought an action against the keeper of a ferry-boat for refus-
ing to carry him across a river, in consequence of which he sus-
tained loss by not being able to keep an appointment. But it was
held that He could not recover damages on any such ground.’’*

Sec. 380. Natural result of breach.

If, however, the plaintiff, in order to perform a contract, is forced
to buy other goods at an increased price, in consequence of the non-
arrival of those which the defendant had contracted to bring, this,
it seems, is such a natural result of the defendant’s neglect as to
entitle him to recover his less.’

And so where the defendant agreed to carry 1,300 tons.of coal
from the Tyne to Havre, and by the custom of the colliery trade the
plaintiff was not allowed to secure a cargo till his vessel was ready,
and the defendant made default, and the price of coal rose before
the plaintiff could charter another vessel, it was held that the
defendant was bound to make good the loss occasioned by the dif-
ference of price, as it did not appear that there was any correspond-
ing rise of price at Havre.°

In the case of carriers by land an absolute failure to carry
*goods, in the sense of never commencing the carriage, sel- [261]
dom occurs. In the well-known instance of the war waged

1Walton »v. Fothergill, 7 C. & P. Briggs v. N. Y. Cent. R. R. Co. 28
394. Barb, (N. Y.) 515.
‘Walton v, Fothergill, ubi sup.; | *Featherston », Wilkinson, L. R., 8
Ex, 122; 42 L. J. Ex. 78,
398 Farturr to Carry PaAssENGERS.

by the railway companies against carrying packed parcels, it was
intimated by Martin; B., that very heavy damages might be given,
if it were established that the defendants designedly refused to take
parcels which they were bound by law to take, for the purpose of
getting « monopoly in their hands, and destroying the plaintif’’s s
trade.’ The declaration, however, did not admit of the point being
decided.

Sec, 381. Failure to carry passengers.

Where the contract is to carry passengers, a failure to do so en-
titles them to procure another conveyance, and to charge the de-
faulting party with the expenses of the substituted conveyance, and
with all other expenses necessarily and properly ineurred. A ship-
owner and immigration agent advertised ships to sail on fixed days,
for which written guarantees would be given. The plaintiff paid
half the passage-money for himself and his family, by the ship ap-
pointed to leave on the 25th August, but neither asked-for nor got
a written guaranty of the date of sailing. On arriving at the port
of departure the plaintiff was informed that the vessel would not
sail till the 8d September, and he then took a passage by another
ship which was to leave on the first. It was held that the adver-
tisement amounted to a guaranty of the date of sailing, and that
the plaintiff was entitled to recover the passage-money he had paid.
and the expenses he had incurred during his detention.” And on
the same principle, where a railway company advertises that they
will run trains in such a manner as to enable passengers to reach a
particular place at a particular time, if a passenger takes a ticket, or
is ready to take a ticket for that place, and the company fail to carry
out their part of the contract, they will be liable for the reasonable
consequences of their default; such as hotel expenses, or the ex-
pense of procuring another conveyance, if the circumsiances are
such that it would be proper for the passenger to take another con-
veyance instead of waiting for the next train.” And mere
#262] *inconvenience will be a ground for damage, if it is such as

is capable of being stated in a tangible form, and assessed at a

1 Crouch v. G.N. Ry. Co. 11 Ex. B. 860; 25 L. J. Q. B. 129; Hamlin v,

9742; 25 L. J. Ex. 187. G. N. Ry. Co., 1 H. & N. 408; 26 L.
2 Oranston v. Marshall, 5 Hx. 895; J. Ex. 20; Le Blanche 0. L. &N. W.
19 L. J. Ex. 340. Ry. Co., 1 ©. P. D. 286;45 L. J.C.

8 Denton v. GN. Ry. Co, 5 E.& P. 521; see ante, p. 28.

 
AOTIONS AGAINST CARRIERS. 899

money value.’ But circumstances which could not have been fore-
seen, and are, therefore, not the natural result of the breach of the
contract, cannot be made the ground of a claim for damages; as,
for instance, that the passenger caught a cold from having to walk,
or lost an appointment by not arriving in time to apply for it.’

Sec. 382. Delay in carrying.

Damages for delay in carrying passengers or goods will be gov-
erned by the same principles. Where the result of the delay is
absolutely to destroy the goods, as in the case of fruit, fish, flowers,
game, meat or the like, if their nature was known, the whole value
would be recoverable. And it appears to be now settled, that in
the case of goods sent by land, which are, or may be supposed
to be consigned for immediate sale, the defendants would
be liable to make good any diminution in their value caused by a
fall in the ordinary market price. But in the case of goods sent by
a long sea voyage, no such ground of damage would be allowed,
nor any damages occasioned by the mere fact of detention, beyond
interest on the invoice price of the goods.’ Nor can damages ever
be recovered in consequence of the loss of a special contract, by
virtue of which the goods were to be resold on arrival at a rate
higher than the general market rate, unless such special contract
was communicated to the defendant, and he had contracted to be
answerable for such special damage.‘

Sec. 383. Reasonable expenses incurred.

So also other expenses, properly and naturally arising from the
detention of goods, will be recoverable as damages in an action for
negligence. As, for instance, the fair and reasonable cost of
searching for the goods, such as cab-hire, messengers, postage and the .
like. But not special outlay incurred by the consignee in waiting

' Hamlin v. G. N. Ry. Co., ubi sup.; shire Ry. Co., 9 0. B. (N. 8.) 682; 30
Hobbs v. L. & 8. W. Ry. Co, L. KR. LJ. CO. P. 282; Collard v. 8. E. Ry.:
10 Q. B. 111; 44 L. J. Q. B. 49. Co, 7H. & N. 79; 30 L. J. Ex. 393;

*See per Cockpurn, C. J., in ante, p. 24.

Hobbs v. L. & 8. W. Ry. Co., ubi sup.; 4Horne v. Midland Ry. Co., L. R.,
ante, p. 67. 7 ©. P.588;41 L. J. OC. P. 264, af-

3 The Parana, 2 P. D. 118; see ante, firmed, L. R., 8 OC. P. 181;42 L. J.
p. 25; Wilson v, Lancashire & York- C. P. 59; ante, pp. 39, 44.
400 Actions ror Loss oF or Insury to Goons.

at the place of destination to receive the *goods,! or in re-
[263] avi 2
moving the goods to another and more profitable market.

Sec. 384. Remote damages. Penalty.

Lastly, it is to be remembered, that a carrier can never be held
responsible in damages for loss resulting from his delay, where such
loss arose not from the delay alone, but from the existence of other
circumstances unknown to him, which made the delay be specially
injurious. And it seems also that even knowledge of those circum-
stances would not create a liability to reimburse the loss without a
contract to that effect. Nor in any case where the delay is not the
proximate cause of the injury complained of, but only a secondary
or remote cause.’

Where the charter-party contains a penalty, which is not liqui-
dated damages, a larger sum than the penalty may be obtained by
suing, not for it, but for damages for the breach of contract.°

Sec. 385. Mode of calculating value of goods in actions for loss or injury to
them.

The damages in actions for loss of or injury to the goods are gen-
erally confined to the value of the articles lost. And it makes no
difference that they have got into the hands of third parties who are
also liable to the owner. For instance, the defendants, a railway
company, delivered the plaintifi’s goods by mistake, not to the right
consignee, but to J. S., who had been in the habit of receiving the
plaintiffs goods as his factor. J. 8. sold the goods, as he fancied he
was authorized to do, and rendered an account of the sale to the
plaintiff. He subsequently stopped payment. The plaintiff sued
the defendants for the goods, and it was held that he was entitled to
recover the amount for which they sold, and that he was not preju-

"Woodger ». G. W. Ry. Co, L. J. Q. B. 292; ante, p. 89; British Col-
R., 20. P. 318; 36 L. J. O. P. 17%. umbia Saw Mill Co. v. Nettleship, L.

2? Black v. Baxendale, 1 Ex. 410.
See the remarks of Boviut, C.J.,
upon this case, L. R., 2 C. P. 321.

3 Hadley »v. Baxendale, 9 Ex. 341;
23 L. J. Ex. 179; ante, p. 16; Gee v.
Lancashire & Yorkshire Ry. Co., 6 H.
& N. 211; 30 L. J. Ex. 11; ante, p. 35;
G. W. Ry. Co. v. Redmayne, L. R., 1
C. P. 829; ante, p. 386; Hales v. L. &
N. W. Ry. Co., 4 B. & 8. 66; 32 L.

R., 3 C. P. 499; 87 L. J. C. P. 235;
ante, p. 42; see Simpson v. L. & N. W.
Ry. Co., 1Q. B. D. 274; 45 L. J. Q.
B. 182; ante, p. 48.

“Hobbs vo. L. & 8. W. Ry. Co., L.
R., 10 Q. B. 111; 44 L. J. Q. B. 49;
ante, p. 67,

* Winter ». Trimmer, 1 W. Bl. 395;
Harrison v. Wright, 18 East, 348;
Maylam ». Norris, 2 D. & L. 829.
AOTIONS AGAINST CARRIERS. 401

diced by having tried to obtain the proceeds of the sale *from
J.S. This was no ratification of the defendant’s act.1_ The
only question then will be as to the mode of estimating this value.
It will be in general the market value of the goods at the place and
time at which they ought to have been delivered,’ independently of
any circumstances peculiar to the plaintiff.° If from the smallness
of the place or the scarcity of the article or other reasons there is
no market price, the real value at the time and place must be ascer-
tained, as a fact, by the jury, taking into consideration the circum-
stances which would otherwise have influenced the market price, if
there had been one, such as price at the place of manufacture, cost
of carriage, and a reasonable sum for importer’s profit.* In an ac-
tion against ship-owners for loss of goods, Lord ELLenzoroves
said that the plaintiffs were entitled to recover the value of the
goods on board at the time she was captured, by means of the devi-
ation. That in the absence of any other evidence, that value could
not be taken as more than the cost price and shipping charges, and
that the insurance premium could not be added, as no new value
was given to the goods by insuring them.’ Where, however, the
cargo was conveyed to its proper destination, and there handed over
to a person who was not entitled to it, it was decided that its value
at the port of discharge was the proper measure of damages. Parxkx,
J., said, “The plaintiffs are entitled to be put in the same situation
as they would have been in, if the cargo had been delivered to their
order at the time it was delivered to B.; and the sum it would have
fetched at that time, is the amount of loss sustained by the non-
performance of the defendant’s contract.” ° Where no evidence at
all can be given, the question of value must be resolved by the
usual rules upon which presumptions of this sort are governed. If
an evidence of value is withheld by the defendant, the goods, as
against *him, would be presumed to be of the highest value
articles of that nature were capable of.° Unless any such

[#264]

[*265]

1Sanquer v. L. & S. W. Ry. Co., 3G. W. Ry. Co. v. Redmayne, L.
16 C. B. 163. R., 1 0. P. 329.

* Rice v. Baxendale, 7 H.& N. 96;  4O’Hanlan v». G. W. Ry. Co,
‘30 L. J. Ex. 871; Wilson v. Lancashire supra.
& Yorkshire Ry. Co., ante, p. 26; ° Parker vo. James, 4 Camp. 112.
Collard v. 8. E. Ry. Co., id.; O’Han- 6 Brandt o. Bowlby, 2 B. & Ad.
lan o. G. W. Ry. Co., 6 B. &S. 484; 982, 939.
34 L. J. Q. B. 154; ante, p. 28. 6 Armory v. Delamirie, 1 Stra. 505.

51
402 Aotions For Loss or or Insury To Goons.

circumstances existed, the jury would, no doubt, as in a former case,
be directed to give damages proportioned to what they might con-
sider to be the fair and probable value of the articles in question ;*
“and not to pare down the amount of damages, because the articles
could not be distinctly proved.” Where the plaintiff is not himself
the owner of the goods, but has only a qualified property in them,
he will be entitled to recover their whole value from the carrier, if
he is himself liable for their value to the owner; and it is not neces-
sary that he should have actually paid the owner.’

Cases of special damage accruing from loss of goods, injury to
them, or delay in their delivery, are governed by the principles laid
down above.

The same question as to the mode of valuing goods that have been.
lost to the owner, often arises in a different way.

Sec. 386. When goods have been sold for repair of ship. Where ship has
arrived. Where not. °

It is the primary duty of the master of aship, acting for the
owner, to convey the cargo to its place of destination in the same
ship, and in case of damage, to repair it. To accomplish the latter
object, he may, in cases of urgent necessity, sell the cargo, which is
in effect borrowing from the shipper through the medium of a sale.
Such a proceeding raises an implied contract of indemnity from the
owner, for whose benefit the act was done, in favor of the shipper.
The question then arises, at what value are the goods to be taken for
the purpose of this indemnity? Where the ship has arrived, the
owner is entitled to the amount which they would have fetched at
the port of destination.* If, however, the goods have actually been
sold for a higher price than they would have been worth, if deliv-
ered, it does not seem quite settled whether the owner can claim this
sum. In one case, where goods had been sold in this manner, Lord
Ex.enzorovesr decided that the owner might deduct the sum which

aaa they had *brought from the entire freight due.’ It does not
[*266] ' ‘

appear, however, whether the owner lost or gained by taking
this standard. In another case, where the selling price was de-

1 Butler v. Basing, 2 C. & P. 613. 4 Alers ». Tobin, Abb. Ship. 372;
? Crouch v. L. & N. W. Ry. Co., 2 380, 11th ed.; Hallett v. Wigram, 9
C. &K. 789. C. B. 580.

3 Benson v. Duncan, 1 Ex. 537; 3 's Campbell », Thompson, 1 Stark.
id. 644. 490.
Actions against Carriers. 408

cidedly higher than what they would have fetched at their destina-
tion, and an arbitrator adjudged the selling price to be due, the
court refused to set aside the award, saying it did not clearly appear
that it was wrong. Hotroyp, J., seemed inclined to thinkit was
right. He said, “There is strong reason for contending that the
owner of goods should receive a compensation for the goods sold
according to their highest value. If the master could get money by
other means, he had no right to sell; and if he had sold the goods,
the owner ought to be entitled to the actual proceeds, for the owner
of the ship, in the event that has happened, ought not to be allowed
to make any profit by such sale.” !

Where the ship has never arrived at her destination, but has been
lost since the sale, it is now settled that the goods cannot be taken
at their price at a place which they never could have reached. It is
not decided whether in such a case the owner would be liable at all.’
The foreign codes and jurists are at issue upon the point. Lord
TENTERDEN, in his treatise," considers it to be the most reasonable
doctrine that the money should only be payable in case of the safe
arrival of the ship, as the merchant is not thereby placed in a worse
situation than if his goods had not been sold, but had remained on
board the ship. On the other hand, the ship-owner is clearly in a
better situation than if he had furnished the money himself, or it
had been borrowed on his credit. It seems curious that a case so likely
to occur in a mercantile country should have never been decided.

Sec. 387. Obligation to protect goods.

The care which a ship-owner is bound to take of goods carried by
him involves an obligation, not only to protect them against injuries
incidental to the voyage, but also to take active measures, so far as
they are reasonably practicable under the circumstances, to check and
arrest loss or deterioration arising from accidents for which he is not
otherwise responsible. A *ship-owner received beans for car- [#267]
riage. During the voyage a collision occurred, which caused
the beans to be wet. The ship put back into port for repairs. Dur-
ing the delay so caused the beans might have been put on shore and
dried at a reasonable cost, and if this course had been adopted the

1 Richardson v. Nourse, 3B. & Ald. ° Atkinson ». Stephens, 7 Ex. 667.
287. 3 Abb. Ship. 372; 330, 11th ed.
404 Actions against CARRIERS.

decomposition of the beans would have been arrested. In conse.
quence of no such steps ‘having been taken the beanssuffered a further
damage, beyond ‘that which would have accrued if they had been
taken out and dried. It was held that the ship-owner was liable to
pay for this additional loss, after allowing the estimated expenses of
unshipping, drying and re-shipping.’

Sec.388. Undue preference.

Where a railway company grants an undue preference to one cus-
tomer over another, this is an injury to the customer to whom it is
refused, exactly in proportion to the benefit he would have derived
if it had been accorded to him. It is, in fact, an overcharge to that
extent. He is, therefore, entitled to recover from the company a
sum equal to that which he would have been saved. if the same ad-
vantages had been allowed to him.’

Sec. 389. Liability of ship-owners for loss caused by pilot; or by fire or
robbery in certain cases. Wrongful sale.

The liability of ship-owners for loss not attributable to their own
default has been restricted by statute in various cases. The Mer-
chant Shipping Act, 1854,° section 388, provides that no owner or
master of any ship shall be answerable to any person whatever for
any loss or damage occasioned by the fault or incapacity of any
qualified pilot, acting in charge of such ship, within any district
where the employment of such pilot js compulsory by law. This
section will only protect the owner, etc., where the loss occurred
wholly from the fault of the pilot; and it was, or may have been,
partly the fault of the master or crew, the liability continues.‘ This
clause differs from the corresponding section of 6 Geo. IV, ch. 125,
§ 55, which extended the immunity to cases where a pilot was act-
[#268] ing in charge *of the ship under any of the provisions of the

Act. Accordingly it was held, under that section, that the

1 Notara v. Henderson, L. R., 7 Q.
B. 225; 41 L. J. Q. B. 158.

2 Hvershed ». L. & N. W. Ry. Co.,
2Q. B. D. 254; 46 L. J. Q. B. 289.

317 & 18 Vict., ch. 104; this and the
amending acts apply in favor of a
railway company which carries pas-
sengers and goods partly by railway,
and partly by their own ships, where
the damage complained of has oc-

curred during the transit by sea; L.
& S. W. Ry. Co. v. James, L. R., 8
Ch. App. 241.

‘The Iona, L. R., 1 P. C. 426. The
Velasquez, id. 495; 4 Moo, P. C. (N.
8.) 426; 36 L. J. Adm. 19; The Ocean
Wave, L. R., 8 P. C. 205; Stuart ».
Isemonger, 4 Moo. P. C. 11; Hammond
v. Rogers, 7 id. 170; Rodrigues ».
Melhuish, 10 Ex. 110; 24 L.J. Ex. 26.
Statutory Luwrarion or Liasimry. 405

owner was not liable when the pilot was taken on board under cir-
cumstances which did not make it compulsory on the defendant to
employ him, though he was bound to go, if required.!. But under
the Merchant Shipping Act, 1854, section 388, the owners are respon-
sible for the negligence of the pilot where they are not under
compulsion to put him in charge of their vessel.”

No owner of any sea-going ship, or share therein, shall be liable to
make good any loss or damage that may happen, without his actual
fanlc or privity, to any goods by reason of any fire on board, or to
any gold, silver, diamonds, watches, jewels or precious stones, by
reason of any robbery or embezzlement, unless their nature and
value has been inserted in the bills of lading or otherwise declared
in writing to the master of the ship at the time of shipping.’

But where the cause of action arises out of a wrongful sale of
goods by the master of a ship, the whole value of the goods may be
recovered in trover.*

Sec. 390. Limitation of liability for loss of life or personal i injury.

The Merchant Shipping Act Amendment Act, 1862 (25 & 26
Vict., ch. 63), section 54, further provides that the owners of any ship,
whether British or foreign, shall not, in cases where, without their
actual fault or privity, loss of life or personal injury is caused to any
person, being carried in such ship; or damage or loss caused to
goods, merchandise or other things on board such ship; or where,
by reason of the improper navigation of such ship, loss of life or
personal injury is caused to any person carried in any other ship or
boat, or loss or damage caused to any other ship, or boat, or to
goods, merchandise, or other things on board any other ship
or boat, be answerable in damages, in respect of loss of life or
personal injury, either alone or together with loss or damage to
ships, boats, goods, merchandise, or other things, to an aggregate
*amount exceeding 152. for each ton of their ship’s tonnage; [#269]
nor in respect of loss or damage to ships, goods, merchandise,

' Lucey v. Ingram, 6 M. & W. 302. eral Steam Nav. Co. v. British and
* The Lion, L. R., 2 P. C.525; The Colonial Steam Nav. Co., L. R., 4 Ex.
Stettin, Br. & Lush, 199. The pilot need 238; 38 L. J. Ex. 97, in Ex. Ch.
not be compulsorily employed at the 317 & 18 Vict., ch. 104, § 508.
spot where the accident happens, ifhe |‘ Morrisv. Robinson, 3 B. & C. 196,
has been compulsorily employed with- 205.
in the district where it happens, Gen-
406 AcTIoNs AGAINST CARRIERS.

or other things, whether there be in addition loss of life or personal
injury or not, to an aggregate amount exceeding 8. for each ton of
the ship’s tonnage. The tonnage is to be the registered tonnage in the
case of sailing ships, and in the case of steam ships the gross tonnage
without deduction on account of engine room; and a mode of as-
certaining the tonnage of foreign ships is prescribed."

Sec. 391. Costs of suit.

The cost of recovering compensation, either by suit against the
owners, or by process against the ship, may be recovered beyond
this extent.’

Sec. 392. Foreign shipment.

Under the section which requires the value of certain articles to
be stated, it has been held that if the shipment is made in a foreign
country, it will be sufficient to state their value at that place in the
coin of the realm. But Lord Axninezr, C. B., doubted strongly
whether the act applied at all to shipments made from a port which
is not governed by the law of England. At most, he said, the
statute could only apply where the shipment was made to Eng-

land.°

Sec. 393. Inland navigation.

None of the clauses above cited extend to small craft, lighters,

1 Under the repealed sections of the
former act, 17 & 18 Vict. ch. 104, §§
504,505, the ship-owner’s liability was
restricted to the value of ship and
freight, to be taken in case of loss of
life or personal injury, at not less than
151. per registered ton. By § 506,
which is still in force, the owner is
liable for loss and injury arising on
distinct occasions, to the same extent
as if no other loss or injury had arisen.
As to the power of the court of admi-
ralty over freight since the act of 1862,
see The Orpheus, L. R., 3 A. & E. 308;
40 L. J. Adm.24; 25 & 26 Vict., ch.
63, has operation on the high seas,and
applies both to British and foreign
ships. The Amalia, 32 L. J. Adm.191.
It may be mentioned here that Lord
CaMPBELL’s act (9 & 10 Vict., ch. 98)
was held to extend to a case where
the person in respect of whose death
damages were sought was an alien,and
at the time of the collision causing

death, was on board a foreign vessel
on the high seas. The Explorer, L. R.,
3 A. & E, 289. The court of admiralty
has no jurisdiction over suits for per-
sonal injury resultingin death. Smith
v. Brown, L. R., 6 Q. B. 729; 40 L. J.
Q.B. 214. By the merchant shipping
act, 1854; 17 & 18 Vict., ch. 104, §
512, no action can be brought in case
of loss of life, or personal injury, against
the owner of a ship, until the board of
trade has held an inquiry or refusal to
do so.

* Ex parte Rayne, 1 Q. B. 982.

5 Gibbs o. Potter, 10 M. & W. 70;
decided in 26 Geo. III, ch. 86, § 3,
similar in terms to 17 & 18 Vict., ch.
104, § 503. Such a description of
goods as “one box, containing about
248 ounces of gold dust,” is not a
declaration of the true nature and
value. Williams ». African Steam
ae Co., 1H. & N. 300; 26 L. J. Bx.
Statutory Lorration or Lrasruiry. 407

boats, gabbets, etc., concerned in inland navigation.! *Nor
does the immunity from loss by fire protect against losses
arising froma fire on board a public lighter employed,by ship-owners
in transporting cargo to a ship, which would itself be within the
statute.”

[*270] |

Sec. 394. Liability of land carriers at common law.

The legislature has also interfered in the case of carriers by land.
The great extent of their liability at common law, which was held to
amount to a contract of insurance upon goods intrusted to them,
had naturally caused an effort on their part to reduce it. This they
used to do by notices, in the shape of advertisements, handbills, pla-
cards in-their offices, and so forth, stating that they would not be
liable for any property beyond a certain value, unless paid for at an
extra rate when delivered. This amounted to a special contract,
binding on the owner of the goods, when brought home to his

knowledge. It fell short of their intention, however, in two respects.
In the first place, it was absolutely necessary to show that the notice
had come to the knowledge of the plaintiff,’ though no proof of an
agreement to it on his part was required.‘ In the next place, it was
decided, that even a notice with which the plaintiff was proved to
be acquainted would not protect the defendant, when the loss
occurred from any act amounting either to a misfeasance and utter
renunciation of his character as carrier, or even to what the courts
termed “ gross negligence.’”*

Sec. 395. Carriers’ act.

To remedy this state of things the carriers’ act’ was passed.
It enacts’ that no common carrier by land,’ for hire, shall be liable
for the loss of or injury to any gold or silver, whether manufac-
tured, unmanufactured, or in coin, precious stones, jewelry, watches,

1 Hunterv. M’Gown, 1 Bligh, 580. C. & M. 353; Lowe v. Booth, 13 Price,
® Morewood v. Pollok, 1E. & B. 748; 329.
22 L. J. Q. B. 250. ® 11 Geo. IV and 1 W. IV, ch. 68.
3 Kerr v, Willan, 6 M. & 8. 150; TS. 1. ‘
Walker ». Jackson, 10 M. & W. 161. 8 A contract to carry partly by land
4 Nicholson -v. Willan, 5 East, 507; and partly by sea is divisible, and asto
Mayhew ». Eames, 3 B. & C. 601. the land journey, the carrier is pro-
5 Birkett v. Willan, 2B. & Ald. 356; tected. Le Coutier vo, L:& 8. W. Ry.
Garnett ». Willan, 5 id. 58; Sleat Co.,6B.&S. 961; L. R.,1Q. B. 54;
o. Fogg, id. 342; Owen v. Burnett, 2 35 L. - Q. B. 40; Pianciani v. Same,
180. B. 226.
408 Actions aGarmnst CARRIERS.

clocks, time-pieces, trinkets,! bills, bank-notes, orders, notes or secu-
[#971] rities for payment *of money,’ stamps, maps, writings, title-

deeds, paintings, engravings, pictures,’ gold or silver plate or
plated articles, glass, china, silks, manufactuted or unmanufactured,
wrought up with other materials or not,’ furs,’ or lace,’ contained in
any parcel, when the value exceeds 10/., unless its value has been
declared,’ and an increased charge paid at the time of the delivery.
A notice of such increased rate of charges, fixed in the office in
legible characters, is to bind all parties sending parcels, without
proof of their knowledge.* But the carrier will not be entitled to
the benefit of the act, unless such notice is affixed, or in case of his

refusal to give a receipt for the parcel insured.”

' A gold chain used for an eye-glass
held not to be a trinket; Davey ». Ma-
son, Car. & M. 45; but it has since
been held that articles of use or neces-
sity, such as shirt-pins, bracelets,
brooches, port-monnaies, or smelling-

bottles, if so much ornament is super-

added as to make their main object
ornament, are trinkets. Bernstein v.
Baxendale, 6 C. B. (N. 8.) 251; 28 L.
J. OC. P. 265.

? Where an instrument was lost,
bearing a bill of exchange stamp, and
drawn in the following form, ‘‘ Three
months after date pay to me the sum
of 112. 10s. value received. To Mr.
C.. &c.” And written across it was
an acceptance by C. The parcel con-
taining the instrument was addressed
to A, acreditor of C, with the inten-
tion that A should put his name to it
as drawer. Held, that it was not a
bill, as it had neither drawer nor
payee, nor a note, as it contained no
promise to pay. That it was a ‘‘writ-
ing,” but not of any value at the time
of delivery, as no one but A had
power to complete it. Stoessiger ».
8. E. Ry. Co., 3 E. & B. 549; 23 L.
J. Q. B. 298.

3'Where a picture is framed, the
frame, as forming part of the picture,
is within the act. Henderson ». L.
& N. W. Ry. Co, L. R., 5 Ex. 90.
In a previous case, where a packing-
case containing a lace design, in a gilt
frame covered with glass, was lost on
its way to an ecclesiastical art exhibi-

The common-law

tion, the owner, though the lace came
within the act, was allowed to recover
the value of the frame and the pack-
ing-case, the frame being considered
not a constituent part of the lace
design, and the packing case being
accessory to the frame as much as to
the lace. Treadwin »o. G. E. Ry.
Co, L. R., 30. P. 308; 87 L. J.C.
P. 83.

4Lord Axsinerr ruled that silk
dresses made up for wear were not
within the act; Davey v. Mason, Car.
& M. 45; but this must now be con-
sidered as overruled; see Bernstein v.
Baxendale, 6 C. B. (N. S.) 251; 28
L. J.C. P. 265; where silk guards
were held to come within the act; and
Brunt ». Midland Ry. Co., 2 H. & C.
889; 33 L. J. Ex. 187; where the same
was held of elastic silk webbing. So
Flowers v. 8. E. Ry. Co, 16 L. T.
(N. 8.) 829; W. N. 1867, p. 155.

° Hat bodies, composed partly of
the soft substance taken from the
skin of rabbits, partly of the wool of
sheep, were held not within this sec-
Se Mayhew v. Nelson, 6 C. & P.
_ § By 28.& 29 Vict., ch. 94, § 1, this
is to be construed as not including
machine made lace.

" As to what is not a sufficient de-
claration of value, see ante, p. 406,
note.

®§ 2.

9§$ 3.
Stratrurory Lioiration or Lrasiurry. 409

liability *of carriers for articles not enumerated above can-
not be limited by a mere notice,’ but it may by a special
contract. The extra costs of insurance may be recovered as dam-
ages, in an action for loss or injury to goods.” On the other hand,
the declared value will not be conclusive against the carrier as to its
real worth.? The act does not protect the carrier from liability to
answer for losses or injury arising from the felonious acts of any
servant in his employ ; nor does it protect the servant from liability
on account of his own neglect or misconduct.* Therefore, where
goods, within the terms of the act, and not insured, have been lost
by felony of a servant, it is sufficient in answer to a plea setting up
notice of an extra charge which was not paid, to reply the felony
without averring negligence. ‘“ Under the statute felony by a ser-
vant is a sufficient answer to the defense set up by the carrier, and
negligence has nothing to do with it; and, on the other hand, under

[*272]

the carrier’s notice negligence is the sole question, felony is imma-

terial.” °

Sec. 396. Special contract.

Where there has been a special contract in sufficiently wide terms,
no negligence, however gross, will make the defendant liable.“ The
fact of goods being received bv a common carrier, under a special

194,

7.
9.
8.

ao moe

$

:

G. W. Ry. Co. ». Rimell, 18 C.
B. 585; 27 L. J. C. P. 201; per Jzun-
vis, OC. J., explaining Butt o. G. W.
Ry. Co., 11 C. B. 140; 20 L. J. C. P.
241; so Treadwin v. G. E. Ry. Co.,
L. R.,3 C. P. 310, per Wiiues, J.
The felony must be brought home to
the carrier’s servants, and it is not
sufficient to show that some one must
have stolen the goods. Metcalfe v. L.
B. &8. C. Ry. 40. B. (N. S.) 311;
27 L. J. ©. P.333. At least facts
must be proved which make it more
probable that the felony was com-
mitted by some one or other of the
company’s servants, than by any one
not in their employment. Vaughton
o L. &N. W. Ry. Co., L. R., 9 Ex.
93; 43 L. J. Ex. 75. The greater
opportunity of committing a theft

52

which the company’s servants have,
will not alone make out a prima facte
case against the company. McQueen
» G. W. Ry. Co, L. R., 10 Q. B.
569; 44 L. J. Q. B. 130.

6 Austin v. Manchester Ry. Co., 10
C. B. 454; Carr v. Lancashire Ry. Co.,
7 Ex. 707; Morville v. G. N. Ry. Co.,
21 L. J. Q. B. 319; Peek v. North
Staffordshire Ry. Co., 10 H. L. C.
494; 32 L. J. Q. B. 250, per Buacx-
BuRN, J. For examples of contracts
held not to relieve from liability to
make good loss arising from excepted
perils, where caused by the carrier’s
negligence, see Phillips o. Clark, 2
OC. B. (N.S.) 156; 26 L. J. C. P. 168;
Martin ». Great Indian Peninsula Ry.
Oo., L. R., 3 Ex. 9; 37 L. J. Ex. 27;
Ozech ». Gen. Steam Nav. Co., L. R.,
3C. P. 14; 37 L. J. C. P. 3. As to
what constitutes a special contract,
see Anderson v, Chester and Holyhead
Ry. Co., 4 Ir. C. L. BR. 435.
410 ACTIONS AGAINST CARRIERS.

. *contract, does not deprive him of the protection of the act,.

unless the terms of the contract are such as to be inconsist-
ent with the goods having been received by him in his capacity of
a common carrier.

[#273

Sec, 397. Provisions of Railway and Canal Traffic Act, 1854.

The length to which the decisions upon this point had gone
caused the legislature to interfere. Accordingly it is provided by
17 & 18 Vict., ch. 31, § 7,’ that every notice, condition, or declara-
tion by which any railway or canal company shall limit its liability
for loss caused by its own neglect or default, shall be void, unless
deemed to be reasonable by the court or judge before whom any
question relating thereto is tried. They are only to be liable, how-
ever, to the extent of 50/. for a horse, 157. for neat cattle, and 2/.
for pigs and sheep, unless they have been paid for on an additional
value. Proof of value is to rest upon the owner. All special con-
tracts must be signed by the party to be bound by them. Nothing
in this act is to affect the privileges of the company under 11 Geo.
IV, and 1 Will. IV, ch. 68, as to articles enumerated in it.

Upon 17 & 18 Vict., ch. 31, § 7, it has been decided that the con-
ditions capable of being imposed by railway companies, in limitation
of their liability as common carriers, must not only be in the opin-
ion of a court or judge just and reasonable, but must also be em-
bodied in a special contract in writing, signed by the owner or
tC OTA] sender of the goods." The railway *company cannot set up

“the want of a signature, the proviso only applying to cases
where the railway company is claiming exemption from liability

1 Baxendale v..G. E. Ry. Co., L. R.,
4Q. B. 244; 388 L. J. Q. B. 187, in
Ex. Ch.

2 Extended, so far as applicable, to
traffic carried on by railway companies
in steam vessels by the Railway Clauses
Act, 1863, 26 & 27 Vict., ch. 92, § 31.
By the regulation of Railways Act,
1868, 31 & 32 Vict., ch. 119, § 14, a
railway company contracting to carry,
‘partly by railway and partly by sea,
may limit their liability during sea
transit by a condition conspicuously
published at their booking-office, and
printed on the receipt or freight note.

’M‘Manus ». Lancashire, etc., Ry.
Co., 4H. & N. 327; 28 L. J. Ex. 353,
in Ex. Ch.; Peek », North Stafford-

shire Ry. Co., 10 H. L. C. 478; 32
L. J. Q. B. 241; per Lord Westsury,
C., and Lord WENSLEYDALE. Simons
v. G. W. Ry. Co., 18 C. B. 805; 26
L. J. ©, P. 25. The numerous cases
in which conditions have been held
reasonable or unreasonable, will be
found collected in the note to Coggs
2. Bernard, 1 Smith’s Leading Cases
at pp. 369 et seg., 7th ed. No better
general rule has been laid down than
that stated in the opinion of Buack-
BURN, J., in Dom. Proc. (Peek 2,
North Staffordshire Ry. Co., 10 H. L.
C. at p. 511; 82L. J. Q. B. 252), that
a condition exempting carriers wholly
from liability for the neglect and de-
fault of their servants, is prima-facie
Statutory Liwrration or Lrapinrry. 411

by reason of there being a special contract, in which case the other
party is not to be bound by a contract which he or the person deliv-
ering the goods has not signed.!. The statute expressly applies to
injuries done in the “receiving, forwarding, and delivery,” there-
fore where a horse brought into a railway company’s station yard
for the purpose of being sent by train, was, before any contract for
carriage had been made, injured by the sharp edge of some girders
left there through the negligence of the company’s servants, the
company were held protected from liability for any greater damages
than 50/., although the usual practice at the station was that a ticket
should be got after the horse had been put into a horse-box.” But
the act only extends to the traffic on a company’s own lines, and
not to a contract exempting a company from loss on a railway not
belonging to or worked by them.* The statute does not apply to
articles deposited in the railway company’s cloak-room, because the
company do not receive them in the capacity of carriers.*

Sec. 398. Meaning of word “ loss.”

The word “loss” in 11 Geo. IV, and 1 Will. IV, ch. 68, only
refers to cases where the chattel is either abstracted or otherwise lost
from the personal care of the carrier, or from the place where it
ought to be, and by reason of such loss is incapable of being deliv-
ered at the proper time. It does not protect the carrier in all cases
where the owner of the article suffers damage from the neglect of
the defendant to carry. Therefore, where the declaration stated
that, through the negligence of the defendants his luggage was de-

unreasonable; butif the carrier is will- may be reasonable. See, in addition,

ing to carry for a reasonable remune-
ration, but at the same time offers in
the alternative to carry on the terms
that he shall have no liability at all,
and holds forth as an inducement a
reduction of the price below that
which would be reasonable remunera-
tion for carrying at carrier’s risk, or
some additional advantage which he
is not bound to give and does not
give to those who employ him with a
common law liability, the condition

1 Baxendale v. G. E. Ry. Co., L. R.,
4Q. B. 244; 38 L. J. Q. B. 187.

? Hodgman v. West Midland Ry.
Co, 5 B. & §. 173; 33 L. J. Q. B.

238; affirmed in Ex Ch, 6B. & 8. (N.S8.) 75; 31

Rooth o. N. EB. Ry. Co., L. R., 2 Ex.
173; 36 L. J. Ex. 83. In Harrison 2.

L. B. &S. C. Ry. Co., 2B. & 8. 122;.

31 L. J. Q. B. 1138, Erxe, C. J., and
Keatine, J., held that the operation
of the section was confined to losses
caused by misconduct on the part of
the railway company, and not to losses
occurring through pure accident; but
the judgment of the court was not
given upon this point.

560; 85 L. J. Q. B. 85.
3 Zunz v. 8. HE. Ry. Co., L. R., 4 Q.
B. 539; 388 L. J. Q. B. 209.
4 Van Toll v. S. E. Ry. Co., 12 0. B.
L. J. ©. P. 241.
412 Actions AGAINST CARRIERS.

layed a long *time, during which he was deprived of its use,
a plea which merely alleged the fact of a notice being affixed,
and no declaration of the value of the goods in question, which were
above 102., was held bad. It should have gone on to allege such a
loss as is described above.’

[#265]

Sec. 399. Value must be declared in the first instance.

The declaration of value must be made in the first instance by
the sender of the goods, whether they are delivered at the office
of the carrier, or at the sender’s house, or on the road, or elsewhere.
In no case can the sender recover, unless he has taken the step which
the legislature intended he should take in the first instance.* And
he must make the declaration with the intention that it shall be
understood as a declaration of value, and for the purpose of insur-
ance.’ But when he has declared the value it is for the carrier to
demand the increased rate to which he may be entitled, and if he
does not do so, and the ordinary rate is paid, he is not protected by
the statute from his ordinary common-law liability in case of loss or
injury happening to the goods during the journey.’

Sec. 400, Fraud in concealing value.

Even in cases not within the protection of the act, the plaintiff
cannot recover the value of the article, if he has used fraud in con-
cealing its character." Upon the same principle, if he makes an
untrue statement of the value, upon which the contract between
himself and the carrier is based, he is not at liberty afterward to
deny the truth of the statement and show that the real value was
greater.” Where the contract is to carry a particular species of
goods, such as passenger’s luggage, the carrier is not responsible

-for injury to a perfectly different species, such as merchandise,
which he may happen to be carrying with him, and which the plain-
tiff, even without fraud, procures to be carried, without notice to
the carrier of its nature.” If, however, the defendants, with full

‘Hearn v. S. W. Ry. Co., 10 Ex. ° Gibbon v. Paynton, 4 Burr. 2298;

793; 24 L. J. Ex. 180. Batson v. Donovan, 4 B. & Ald. 21;
Hart v. Baxendale, in Cam. Scacc. Walker v. Jackson, 10 M. & W. 161.
6 Ex. 769. *M’Cance v. L. & N. W. Ry. Oo.,

’ Robinson ». L, & S. W. Ry. Co., 8 H. & C, 848; 34 L. J. Ex. 39, in
19 C. B. (N. 8) 61; 34 L. J. C. P. Ex. Ch.
284; decided upon 17 & 18 Vict., ch. " Belfast and Ballymena Ry. Co. v.
31, § 7. Keys, 9 H. L. ©. 556.

4 Behrens vo. G. N. Ry. Co., 7 H. &
N. 950; 31 L. J. Ex. 299; in Ex. Ch.
Statutory Lurration or Liasrury. 413

notice of *its character, choose to treat it as luggage,

they
will be responsible for its loss.} pate

Sec, 401. Telegraphic messages.

The character in which electric telegraph companies receive and
undertake to forward messages, and their responsibility for loss oc-
casioned by error or delay in transmission, have of late years given
rise to much discussion, especially in America, where most conflict-
ing opinions have been expressed. In England, the court of queen’s
bench, after considering the American cases which were brought to
their notice, have refused to recognize any analogy between the
consignment of goods through a carrier and the transmission of a
telegram. They accordingly held, that the message having been
sent by the sender on his own account, and not as agent for the per-
son to whom it was addressed, there was no privity between the
latter and the company, and that he could not be said to have any
property in the message any more than he would have had if it had
been sent orally by the servant of the sender, and that the obliga-
tion of the company to use due care and skill in transmission was
one arising entirely out of the contract between them and the
sender.” The telegraph companies, in general, limit their responsi-

1G. N. Ry. Co. v. Shepherd, 8 Ex.
30; and see as to amount of notice,
Boys v. Pink, 8 C. & P. 361. The
mere fact that a package looks like
merchandise, and is marked ‘ glass,”
is not enough to fix the carrier with
responsibility. Cahill», L. &N. W.
Ry. Co., 10 C. B. (N. 8.) 154; 30 L.
J. C. P. 289; affirmed in Ex. Ch. 13
C. B.(N. &.) 818; 831 L. J. C. P. 271.
It has been held that pencil sketches
do not form part of the ordinary lug-
gage of an artist; Mytton v. Midland
Ry. Co., 4 H. & N. 615; 28 L. J. Ex.
385; nor title deeds tu be produced at
a trial, nor bank notes for the expen-
ses of a trial, the ordinary luggage of
an attorney; Phelps v. L. & N. W.
Ry. Co., 19 C. B. (N. 8.) 321; 34 L.
J. C. P. 259; nor a rocking-horse that
of a father going home to his chil-
dren; Hudston ». Midland Ry. Co.,
L. R., 4 Q. B. 366; 38 L. J. Q. B.
213; but in a very recent case it has
been said that ordinary personal lug-

gage must be construed relatively to
the habits and wants of different
classes of travelers, and thus may in-
clude the gun case or fishing appara-
tus of the sportsman, the easel of the
artist on a sketching tour, or the
books of a student, and other articles
of an analogous character, the use of
which is personal to the traveler, and
the taking of which has arisen from
the fact of his journeying. Macrow
v. G. W. Ry. Co., L. R., 6 Q. B. 612;
40 L. J. Q. B. 300. Where a servant
took with him the luggage of his
master who was coming by a later
train, the company were held not re-
sponsible. Becher v. G. H. Ry. Co.,
L. R., 5 Q. B. 241; 39 L. J. Q. B.

“122.

? Playford v. United Kingdom Elec-
tric Telegraph Co., L. R., 4 Q. B.
706; 88 L. J. Q. B. 249; Dickson v.
Reuter’s Telegraph Co., 2 C. P. D. 62;
46L. J. C. P. 197. :
A414

Actions AGAINST OARRIERS.

bility by special conditions, which by some of their incorporating

acts must be *reasonable.!

Under the telegraph acts, 1868,

ae 1869,’ telegraphic messages are now carried by the post-
master-general, who is not a common carrier, nor responsible for the
neglect and misconduct of his inferior officers. Nor is the sender
responsible for mistakes made in transmission, the post-office authori-
ties being only his agents to transmit the message in the terms in

which he delivered it.*

1A condition that the company
would not be responsible for unre-
peated messages has been held rea-
sonable. MacAndrew». Electric Tele-
graph Co., 17 C. B. 3; 25 L. J.C. P.
26

° 31 & 82 Vict., ch. 110, and 32 & 33
Vict., ch. 73.

3 Lane »v. Cotton, 1 Ld. Raymond,
646; Whitfield ». Lord LeDespencer, 2
Cowp. 754. The principal American
cases will be found referred to in ch.
30, of Sherman and Redfield on the
law of Negligence(the authors of which
work still maintain the opinion that
‘telegraph companies are common car-
riers of messages), and in a note to

the 4th edition of Sedgwick on Dam-
ages, 5, 413 (1868). It would seem
that the same rules respecting remote-
ness of damage should be applied as
in the case of other contracts; and in
Landsberger v0. Magnetic Telegraph
Co., 32 Barb. 530, the supreme court
of New York acted upon the rule laid
down in Hadley v. Baxendale, and
Griffin v. Colver, 16 N. Y. 494. So,
Stevenson v, Montreal Telegraph Co.,
16 Up. Canada Q. B. 530; Sanders ».
Stewart, 1C. P. D. 326; 45 L. J. C.
P. 682; ante, p. 66, et seq.

‘Henkel 0. Pape, L. R., 6 Ex. 7;
40 L, J. Ex. 15.
Szc. 402.

403.
404.

405.
406.
407.
408.
409.
410.
411.
412.
413.
414,
415.
416.
417.
418.
419.
420.
421,
422.
423.
424,
425.
426.
427,
428.
429.
430.
431.
432.

433.

434,

Actions on Contracts or Inpemntry. 415

*CHAPTER XVII. [*278]

CONTRACTS OF SURETYSHIP.

In actions against surety.

Plaintiff. must prove a loss arising from a cause insured against.

In case of bankruptcy, dividend must be apportioned to whole
debt.

Damages when promise to do a thing is absolute.

‘When promise is to indemnify.

What amounts to a loss.

Liability to suit. Action pending.

Judgment recovered.

A general indemnity only extends to the lawful acts of others.

Otherwise when an individual is specified.

Actions by assignor against assignee.

Amount of damages.

Actions by lessee against sub-lessee.

Sureties on a replevin bond.

Sureties for a sheriff's bailiff.

Right to compromise.

Action against principal by surety.

By surety who has no security.

What amounts to payment by the surety. Giving a note. Bond.

Goods taken in execution.

Transfer of stock. Mortgage.

Interest.

Action by bail.

When surety may sue co-surety, and for what.

Proportion for which each surety is liable.

Costs of suit.

When sureties are bound by different instruments.

Implied indemnity.

Acting as agent without authority.

Collin ». Wright.

Hughes ». Graeme.

Spedding »v. Nevell.

Godwin »v. Francis.

Sec, 402. In actions against surety.
The liabilities discussed in the previous chapters were all of a di-

rect nature, arising from the immediate dealings of the parties with

.
416 Actions on Contracts oF IypEmnrry.

each other. In the present chapter I shall examine a number of
collateral liabilities, which spring from a contract by one person to
guard: the other against the acts or default of some other party or
agent. Under this branch of the subject fall the four well-known
heads of life, fire, and marine insurance and general average, as
also the ordinary cases of guaranty and indemnity. It will be more
convenient to take the latter first, as embodying the general prin-
ciples by which the former one was regulated.

I. A contract of guaranty or indemnity involves the rights of
three persons, the principal creditor, the principal debtor and the
surety. The action may be by the principal creditor against his
immediate debtor, which of course is no way affected by the fact
of the guaranty, or by the same party against the surety ; or by the
surety against the principal debtor, or against his co-sureties, if he is
fortunate enough to have any.

1. Actions by the principal creditor against the surety.

Damages in this action are of course the amount of the debt
[#279] *owing to the plaintiff, or of the loss incurred by him to the

extent to which the defendant had consented to be answerable
for it; and where the debt bears interest, as a bill, the surety will
be liable for the interest also.!

Sec. 403. Plaintiff must prove a loss arising from a cause insured against.
The plaintiff must prove strictly the amount to which he has been
injured. Where the plaintiff was surety for a collector of taxes,
with an indemnity, and sued the party indemnifying him, assigning
as a breach, that the collector had received money, which he had not
paid over, in consequence of which plaintiff had been forced to
pay it, the defendant admitted the receipt of the money by the col-
lector, but not its amount; it was held that the plaintiff could only
recover nominal damages, unless he could show what sums had actu-
ally been received by the collector, and that judgment signed against
him for 5002. at the suit of the receiver-general, was no evidence
of the amount of this damage, as the defendant was nota party to it,
and it might have been obtained by collusion.” So where the de-

1 Ackermann ». Ehrensperger, 16M. that he should duly account to his
& W. 99. principal, where held liable for the
* King ». Norman, 4C. B. 884. In taxed cost of a cause, petition to com-
Greville v. Gunn, 4 Ir. C. L. Rep. 201, pet him to do so.
sureties for a land agent undertaking ~
Actions on Contracts oF InpEmniry. 417

fendant had covenanted that the debts of a certain firm, into which
the plaintiff was about to be admitted as a partner, did not exceed a
specified sum, and that if they did, the defendant would pay on de-
mand of the plaintiff the amount by which they exceeded that sum,
this was held not to be a covenant for liquidated damages, but a con-
tract to indemnify the plaintiff from any loss he might suffer from
an erroneous statement of the debts, and that it was for the jury to
consider to what extent his position had been altered by reason of
the defendant’s breach of covenant.!

The plaintiff must prove not only the amount of his loss, but also
that it arose from the cause against which the surety agreed to pro-
tect him. The plaintiff and S. entered intoa contract that S. should
perform certain works at a fixed sum, receiving from time to time
payment for three-fourths of the work done; the remaining one-fourth
to be paid a month after the completion of the whole; if S. should
fail to complete the *works, the plaintiff was to employ others

[*280]
and deduct the expense from the sum payable to him. De-
fendant was surety for the performance of this contract by S. 8.
abandoned the contract when partly performed. The plaintiff, at
the request of S., had advanced him a sum which exceeded the whole
cost of the works then accomplished, but was less than the whole
contract price. Plaintiff then had the works completed, at a cost
which, added to the price of the work actually done, was less than the
contract price ; but, added to the money which he had advanced, was
more than that sum. He sued defendant on his guaranty, and it was
held that he was only entitled to nominal damages, as the loss had arisen
from his own act in advancing more money than he ought to have done,
not from the refusal of S. to go on with the works.’ It wasalso held
in the same case, that this defense was properly set up in mitiga-
tion of damages, under non est factwm, and could not have
been pleaded ; defendant could not have pleaded performance, be-
cause the contract was broken ; nor that the obligee was damnified
by his own wrong, because this was not a damnification of that sort,
but one not arising on the contract at all.

Walker ». Broadhurst, 8 Ex. 889; °Warre v. Calvert, 7 A. & E, 148.
Ex parte Broadhurst, 2 De G. Mac. & And see Tanner ». Woolmer, 8 Ex.

G. 953. 482,
53
a

418 Actions on Contracts oF INDEMNITY.

Sec. 404. In case of bankruptcy, dividend must be apportioned to whole
debt.

Where a debtor, whose whole debt is covered by a guaranty, be-
comes bankrupt, and a dividend is received, the creditor can of
course only recover the balance from the surety. Where, however,
only a portion of the debt is so secured, the creditor cannot apply
the dividend to the unsecured portion, and recover the whole of the
residue from the surety. The latter has a right to have the divi-
dend applied ratably to the whole debt, and a proportionate deduc-
tion made from the amount for which he is liable. And so, if the

difference between his liability and the entire debt is covered by the

guaranty of another person, each surety may claim a ratable deduc-
tion, out of each pound of the amount of debt to which their re-
spective guaranties extend. The plaintiff cannot apply the whole of
the dividends to either part of the demand at his own election, and
thus vary, at his own pleasure, the extent of the responsibility of the
two sureties.'

Sec. 405. Damages when promise to do a thing is absolute.

*Some distinctions must be observed as to the time at
which a loss occurs, so as to entitle a plaintiff to sue and ob-
tain substantial damages. Where the defendant’s promise is an
absolute one to doa particular thing, as to discharge or acquit the
plaintiff from such a bond, an action may be brought the moment
he has failed to perform his contract, and a plea of non damnijica-
tus would be bad.? Therefore, where a party entered into a cove-
nant to pay off incumbrances on an estate by a particular day,° or to
take up a note," it was held that an action might be brought, and
damages to the extent of the incumbrances and note respectively
might be obtained, though no actual injury had been sustained.°

[*281]

1 Bardwell v. Lydall, 7 Bing. 489;
Raikes v. Todd, 8 A. & E, 846; Gee
». Pack, 33 L. J. Q. B. 49; Thornton
v. McKewan, 1H. & M. 525; 32 L. J.
C.H. 69.

21 Wms. Saund. 117, a, n. 1; 1
Wms. Notes to Saund. 134.

8 Lethbridge v. Mytton, 2B. & Ad.
772; Redfield v. Haight, 27 Conn. 31.

4Loosemore v, Radford, 9 M. &
W. 657,

5 So, where the defendant’s promise

was to be answerable for all the costs,
damages, and expenses, which the
plaintiff might sustain by reason of
his trying an action against a third
person commenced at the defendant’s
request, it was held that costs for
which the plaintiff was liable to his
attorney might be recovered, although
unpaid, the court treating the promise
as an engagement to find the money,
and not merely to indemnify—not
merely to repay, but to take care that
By tur CREDITOR AGAINST THE SURETY. 419

Sec. 406. When promise is to indemnify.

Where the covenant is to indemnify or save harmless, no action
can be brought till some loss has arisen; so it is, also, where the
covenant is to acquit from damage by reason of a bond or some par-
ticular thing; and in either case the proper plea is non damnifica-
tus... The question then will be, what was the loss against which
the plaintiff was to be secured ?

Sec. 407, What amounts to a loss.

*When the plaintiff, at the request of the defendant,
prosecuted an action of replevin, on receiving an under-
taking to indemnify him from the said distress, actions, costs, dam-
ages and expenses, which are now, or may be hereafter, commenced
or otherwise incurred by reason of the claim of the distraining
party, he incurred costs in the replevin suit, and his own attorney
delivered him a bill on .account-of them, it was held that he was
not damnified till he had paid the bill, though it would have been
otherwise if the agreement had been, in terms, to indemnify when
the bill should be delivered.” Here it is plain that the mere de-
livery of a bill by a man’s own attorney, which he might not be
bound to pay at all, or not to its full extent, was no injury to the

[*282]

plaintiff.

the plaintiff should not be called on
to pay; Spark v. Heslop, 1 E. & E.
563; 28 L. J. Q. B. 197; distinguished
on this ground from Collinge v. Hey-
wood, below. In a recent case
the plaintiff, devisee of an estate, con-
veyed it to the defendant, subject to
payment of a legacy of 2007. to A. B.
on attaining twenty-one, or to hif per-
sonal representative, on his death
under age, the defendant covenanting
to pay the legacy accordingly, and to
indemnify the plaintiff against all
liability consequent on non-payment.
A. B. died under age, and his admin-
istrator filed a bill against the plain-
tiff to enforce payment, but the plain-
tiff being advised that, on the true
construction of the will, the legacy,

11 Wms. Saund. 117, n.1; 1 Wms,
Notes to Saund. 134, n. 1.

7 Collinge ». Heywood, 9 A. & E.
688, overruling Bullock », Lloyd, 2

on the death of A. B., ceased to be a
charge on the estate, resisted the
claim, and the bill was dismissed.
The plaintiff then claimed the 2002.
from the defendant, and sued him for
breach of covenant, and was held en-
titled to recover the whole 2002.
Hodgson v. Wood, 2 H. & C. 649; 33
L. J. Ex. 76. A case of substantial
damages recovered for breach of a
covenant to do all things necessary to
corroborate a deed of appointment, or
at the expiration of six months to pay
the full value of the interest intended
to be vested in the covenantee by the
deed of appointment, without any
proof of actual damage, will be found
in Crommelin v. Donegall, 3 Ir. C. L.
434,

CO. & P. 119, and affirmed 3 Ex. 738;
compare Spark 2. Heslop, ante, pp. 418,
419, note ®
420 Actions ox Contracts or InDEMNITY.

And where the contract was to indemnify and save harmless the
plaintiffs against all sums of money, costs and expenses, which they
should pay and incur by reason of becoming bail for the defendant,
it was held that the bond would not be forfeited by the mere
commencement of an action against the plaintiffs upon their bail-
bond; but that if the defendant, after notice, did not immediately
take upon himself the defense of the suit, but let them pay the ex-
pense of it as it went on, this was a damnification, and that the
right of action arose when any such payment was made.

Sec. 408. Liability to suit. Action pending.

It has been laid down in some old cases that liability to a suit is a
sufficient damnification, even before any suit has been commenced ;
as, for instance, where the defendant suffered a prisoner to escape,
after promising to save plaintiff harmless against all escapes;* and
Lord Coxe says, that terror of suit, so as to be a hindrance to busi-
ness, is a sufficient damnification,’ probably referring to the chance
of an arrest on mesne process. This, however, is clearly not law
now, since it has been decided that the actual existence of a suit
which is still pending is no damnification; none as to the subject-
matter of the action, because the defendant may ultimately succeed ;
*nor as to costs already incurred but not paid, because they

*
[eee are incident to the substantive claim.‘

Sec. 409. Judgment recovered.

But judgment actually recovered against a party is always a dam-
nification to the full amount for which it is given, even though pay-
ment has not been made under it. The defendant had agreed to
save harmless his co-trustee, the plaintiff, from any claim which
might arise out of the plaintiff's permitting him to use a legacy of
10,0002., instead of investing it in the way they were bound to do.
A bill was filed against them by the cestuis que trust, the result of
which was that plaintiff was ordered to invest the 10,0002. An
action was brought on the indemnity, before the money had been
invested. Held. that the amount of damages was the amount to which

1 Sparkes v. Martindale, 8 East, *5 Rep. 24.

593. . ‘Taylor v. Young, 8 Taunt. 315; 3
? Barkly v. Kempstow, Cro. Hliz. B. & Ald. 521.

123.
By tae Crepitor against tHE Surety. 421

the making of the claim subjected the plaintiff, which was the sum
to be invested, and the actual loss which had been subsequently
added to that sum, in consequence of the claim having been enforced
by law.!. The court seemed to distinguish this case from those cited
above, on the ground that in them the contract was to indemnify
against a payment, whereas here it was to indemnify against a claim.
In a later case, however, the same decision was given, where the
indemnity did not contain the word “claim.” The plaintiff, who was
a lessee under covenants, assigned to the defendant, taking an in-
demnity against all “costs, damages, and expenses which he might
incur” from breach of those covenants by the assignee. The
assignee did commit breaches, for which plaintiff was sued by his
lessor, and judgment recovered against him by default, and it was
held that he might recover the amount of the damages and the costs
of the judgment by default, in an action on the indemnity, though
he had not paid them himself." The true distinction, then, would
appear to be, between cases where the liability is finally fixed on the
plaintiff, in such a way that it may be enforced at once, and cases
in which there is only a liability to be liable.

The same rule was laid down in another case, where, although
judgment had been obtained against the plaintiff, he had not [#984]
*paid, and might never be called on to pay its amount. The
declaration set out an indenture, by which, after recital that defend-
ant had agreed to pay all debts of J. W., defendant covenanted to
protect and indemnify J. W., his heirs, etc., from the payment of
the said debts, and from all actions, claims, and demands for any of
them. The defendant omitted to pay an annuity, which became
forfeited after the death of J. W., and judgment was had against
the plaintiff, administratrix, for 207. assets in hand, and residue
quando acciderint. The court held that the plaintiff was entitled
to recover the whole amount of the judgment, since, at all events,
the deed amounted to an express covenant to pay the debts, within
the decision of Lethbridge v. Mytton (ante, p. 418). Parrzson, J.,
however, said that a sufficient breach of the covenant to protect
was alleged, when the plaintiff stated that the defendant did not

! Warwick ». Richardson, 10 M. & 2 Smith ». Howell, 6 Ex. 730, See,

W. 284. also, Harrap v. Armitage; 12 Price
441.
54
429 Actions on Contracts or Iyprmnrry.

protect the covenantees, and by reason thereof an action was
brought, and judgment recovered against the administratrix, to the
extent of all the assets she had. That upon this ground the plaintiff
was entitled to the whole sum claimed; the only argument to the
contrary being, that if she recovered it she might not make a proper
useof it. Parxs, J., inclined to the same opinion ; Lirrepaty, J.,
dubitante.. It may be observed that in this case, Parrsson, J.,
took a distinction between a covenant to indemnify, and one to
protect; but the two previous decisions give the former word all
the efficacy which he ascribed to the latter.

Sec. 410. A general indemnity only extends to the lawful acts of others.

There is a distinction as to the species of damage to which a con-
tract of indemnity extends. "When the agreement is a general one
to indemnify against all persons, this is but a covenant to indemnify
against lawful title; and the reason is because, as regards such ac-
tions as may arise from a rightful claim, a man may well be sup-
posed to covenant against the world.” Therefore, if the obligee be
sued unjustly, either because he is sued before the money is due, or
otherwise; or if the bond in which he is bound be against law and
void, and he suffer himself to be unjustly vexed thereupon, it seems

there is no breach of the condition of the bond to save
[°289] harmless! t by assignee of a lease to indem-
armless.* So a covenant by assignee of a lease to indem

nify against rent due from the assignor to the lessor is not broken
by an illegal distress made by the latter.*. And on the same prin-
ciple, where the plaintiff consented to- become member of a provis-
ional committee, on receiving an indemnity ‘against all personal
responsibility, and all costs, charges, and expenses which had been,
or might be incurred in and about the formation of the company,
their meetings, advertisements, surveys, and other expenses of car-
rying out the company, applying for an act of Parliament, or any
thing relating thereto,” and he was sued unsuccessfully by the
advertising agent, it was held that the extra costs incurred by the
plaintiff in his defense could not be recovered against the present
defendant in an action on the indemnity. The court seemed to
consider that costs of this nature did not come within the terms of

1 Carr v. Roberts, 5B. & Ad.%8. 3 Shepp. Touch. 390.

? Per Lord ELLENBoROoUGH, Nash 2, 41 Roll. Abr. 483, pl. 10; Perry 0.
Palmer, 5M. & 8. 374. * Edwards, 1 Stra. 400.
By THe CREDITOR AGAINST THE SURETY. 423

the indemnity at all. Onresswewt, J., said, “He has not been made
personally liable to any such thing. R. tried to impose such a lia-
bility upon him, but failed.” “I am of the opinion that the cove-
nant to indemnify in this case must be construed in the ordinary
way —to indemnify the plaintiff against all lawful claims.”

Sec. 411. Otherwise when an individual is specified.

On the other hand, where a person covenants to save harmless
from all acts of a particular person, there he is bound to indemnify
against the acts of that person, whether by title or not ; for then
the covenantor is presumed to know the person against whose acts he
is content to covenant, and may, therefore, be reasonably expected
to stipulate against any disturbance by him, whether by lawful title
or otherwise.”

Sec. 412. Actions by assignor against assignee.

Where a lessee assigns his lease, it is optional with the lessor, or
assignee of the reversion, either to sue the lessee on his original cov-
enants, or to sue the assignee of the term on the covenants as run-
ning with the land.* In such a case it is usual with the assignee
of the term to covenant with the *assignor to perform all the [#286]
covenants in the original lease—and to indemnify him”
against all suits brought by the lessor or his assignee in consequence
of their non-performance. Where, however, the lessee has assigned
the term by deed-poll, subject to the payment of the rent and per-
formance of the covenants in the original lease ;* or even by inden-
ture in the same words and without express covenants ;° the assignee
cannot be sued by the assignor in covenant.’ But he may be sued
in case or in assumpsit.’ The reason is, that, as the lessee is liable
in the nature of a surety as between himself and the assignee for
the performance of the covenants during the continuance of the in-
terest of the assignee, a duty is imposed upon the latter at common

' Lewis v. Smith, 9 C. B. 610. 315m. L. C., p. 60, and notes, p.

°2 Wms. Saund. 178, n. (c); 2 67, 7th ed.

Wms. Notes to Saund. 526, n. (c); 4 Burnett v. Lynch, 5 B. & C. 589.
Nash »v. Palmer, wbi sup.; and so 5 Wolveridge v. Steward, 1 C. & M.
where the indemnity is against actions 644.

brought in respect of any particular 65 B. & C. 602-609; 1C. & M. 644.
matter, as, for example, a distress for ‘Id. Marzetti v. Williams, 1 B. &
rent, the covenantor may be liable Ad. 424.

though the action be groundless; Ib-
bett 0. De la Salle, ante, p. 134.
424 Actions on Contracts oF InpEMNITY

law to perform the covenants during that time.! It may be ob-
served that the language of Baron Parke just quoted, the argu-
ments of Hotroyp, J.,? and the express opinion of Lord Denman,”
go to show that this action would be equally maintainable whether
the words “subject to the performance of the covenants, etc.,” were
used or not. And it has now been formally decided by the court of
exchequer, adopting the opinion of Lord Dznmay, that there is an
implied promise on the part of each successive assignee of a lease to
indemnify the original lessee against breaches of covenant committed
by each assignee during the continuance of his own term; and such
promise will be implied though each assignee expressly covenants to
indemnify his immediate assignee against all subsequent breaches.’

Sec. 413. Amount of damages.

Damages in such a case would be measured by the loss which the
plaintiff had sustained. Where there is an express indemnity
against breach of covenants, he may recover the costs of an action
brought against him by his lessor, the proper course, if he has no
defense, being to let judgment go by default, and have the damages
proved on the writ of *inquiry.° The same rule would seem [#287]
to hold good where the action is brought upon the implied
indemnity raised by the law.*

Sec. 414. Actions by lessee against sub-lessee.

But the landlord cannot sue the under-lessee for any breach of
covenants contained in the original lease to his own. tenant.’ 'There-
fore, the original lessee cannot be regarded as a surety for the per-
formance by the under-lessee of covenants by which he is not
bound. Consequently, if the latter enters into covenants precisely
similar to those contained in the original lease, these merely con-
stitute an absolute promise to do what he engages, and not a contract
of indemnity against any loss the lessee may suffer from their
breach. And it makes no difference that there is no right of entry
reserved by which the lessee may ascertain whether the covenants

1 Per Parks, B., 7M. & W. 580. 5 Smith 0. Howell, 6 Ex. 730.
5B. &C, 606. 6 Held contra, however, in Ireland,
310. & M. 660. but without discussion. Hopkins v.

4 Moule ». Garrett, L. R., 5 Ex. 182; Murray, 12 Ir. L. R. 359.
39 L. J. Ex. 69; affirmed, L. R., 7 "Holford ». Hatch, Doug. 182.
Ex. 101; 41 L. J. Ex. 62. 7 -
By tur Oreprror aGainst THE Surety. 425

have been executed or not. Hence, if he is sued by his lessor for
breach of covenant, he can only, in an action against the under-
lessee, recover in respect of his breach of covenant, and cannot ob-
tain the costs of defending the former action.

Sec. 415. Sureties on a replevin bond.

The sureties on a replevin bond are together only liable to the
value of the goods seized, if less than the rent in arrear, or the
amount of rent, if they are worth more, together with the costs of
the replevin suit (not exceeding in all the amount of the penalty),
and the costs of the action against them.? On payment of this sum,
and the cost of the application, the court will stay proceedings on
the bond.’ They are not liable for rent subsequently fallen due.‘

Sec. 416. Sureties for a sheriff’s bailee.

Where the sureties for a sheriff’s bailee covenanted to indemnify
the sheriff against the costs of defending any action, and of prose-
cuting or opposing any motion in or application to the court con-
cerning any matter wherein the bailiff should act or assume to act,
as bailiff to the said sheriff; it was held that this covenant extended
to actions *brought against the sheriff for acts done properly [#988]
by the bailiff in the discharge of his duty;° and that he
might recover the costs of an action for a false return, which he
had defended as well as he could, though it had failed on account
of the non-production of evidence which was in his power to bring
forward. Also, that under the terms of the above covenant the
costs of an application to postpone the trial against him until another
trial involving: the matter in dispute had come on might be recov-
ered.°

Sec. 417. Right to compromise.

A party sued on a cause of action, against which he is indemnified,
is not bound to resist if he has no defense. He may make the best
compromise he can, and then recover the loss which he has incurred.

’Penley v. Watts, 7M. & W. 601; 3 Miers v. Lockwood, 9 D. P. C. 975.
Walker ». Hatton, 10 id. 249; Logan 4 Ward ». Henley, 1 Y. & J. 285.
». Hall, 4 C. B. 598; overruling Neale 5 Farebrother v. Worsley, 1C. & J.
v. Wyllie, 3 B. & C. 583; and see 549.
ante, p. 182. 6Id.,5C. & P. 102.

* Hefford vo. Alger. 1 Taunt. 218;

Hunt v. Round, 2 D. P.C. 558.
54
426 Actions on Contracts or IypEmNiTY

Trustees lent trust money to the defendant, and took an indem-
nity from him in case it should turn out the loan was not justi-
fied. A bill was filed against them to invest the money they
had lent. They called on the defendant to come in and resist
the suit. On his refusal they consented to a decision of the
court being at once taken as to the propriety of their con-
duct in lending the money, without carrying on the suit in
the regular form. The decision was against them, and they
brought their action upon the indemnity. It was held that the
plaintiffs’ claim upon the indemnity was unaffected by the summary
method they had pursued, since it did not appear that the decision
could be in any degree affected by the stage of the cause in which it
was pronounced ; or that the plaintiffs, by incurring the expense of
prosecuting the suit to the hearing, could have made any defense ;
or have diminished the damage consequent upon an adverse decision ;
or that the decree pronounced was less binding upon the plaintiffs,
or more prejudicial to the defendant, than it would have been if
made at the ordinary period of the suit.'| In such a case, the onus
of showing that the compromise was a disadvantageous one lies upon
the defendant, and it is not necessary to give the surety notice of
the first action. But if notice is given to him, and he refuse to de-
fend the action, in consequence of which the person indemnified is
[#289] obliged to *yield to the demand, that is equivalent to a judg-

ment, and estops the surety from saying that the defendant
in the first action was not bound to pay the debt.’

Sec. 418. Action against principal, by surety, who has taken a security.

Damages in these actions are governed by exactly the same rules
as those which we have been considering, since the principal debtor
is under an implied obligation to indemnify his surety. The same
distinctions also hold good as to the time at which the action may
be brought. This may differ according as the indemnity is an
express or only an implied one. Where a surety takes a bond from
his principal for the amount of the debt which he has guaranteed,
he may sue upon it on the day assigned in the bond, even though

1 Lord Newborough ». Schroeder, 7 Smith ». Compton, 3 B. & Ad. 407;
C. B. 342, 399. Farebrother ». Worsley, 5 C. & P. 102.

*Duffield v. Scott, 3 T. R. 874; As to costs of the first action, see
Jones v. Williams, 7 M. & W. 493; ante, p. 133.
By tae Surety acamst tHe Desrtor. 427

he has made no payment as surety, and the time at whicn ne could
be called upon as surety has not arrived.!. And in such a case he
must sue upon the bond, and cannot sue in assumpsit for money
paid after he has been forced to pay.” But if the bond were merely
a bond of indemnity, he must prove actual damage.*

Sec. 419. By surety who has no security.

In the case, however, of a mere surety who has taken no security
from his principal, no debt arises from the principal till a payment
has been made by the surety;* even though the surety has been
called on for payment.’ But in equity, as soon as he is under
actual liability, he may demand to be exonerated.*

At law, the moment he has paid any part of the debt, he may sue
his principal, and as often as he makes a payment his right to sue
accrues.” But where a party who is surety for another can only
protect himself from action at suit of a third party by paying
money at a particular day, he may do so, *and before demand

7H
and then sue his principal for the amount so paid.* ve

Sec. 420. What amounts to payment by the surety. Giving a note. Bond.

The form of action by surety against principal is assumpsit for
money paid to his use. An important question then arises, what
may be considered as money for this purpose? Where the plaintiff
was security for the defendant who became insolvent, upon which
the plaintiff, being called on for the money, gave his note of hand
payable with interest, Lord Kenyon held that the creditor having
consented to take the note from the plaintiff, it was as payment to
them of the money due by the defendant; it was payment of money
to his use, and the action was maintainable. And the court, on
motion for a new trial, agreed with this decision.’ The American
courts hold the same rule in all cases in which the note has been
given and accepted by the creditor as full payment and in com-
plete satisfaction.” In England, however, the point seems by no
means settled. It has been twice decided that giving a bond does

1Toussaint v. Martinnant, 2T. R. Lee v. Rook, Mos. 318; Cock ».

100. Ravie, 6 Ves. 283.
*Td. TDavies ». Humphreys, 6 M. & W.
? Penny v. Foy, 8 B. & ©. 13. 153.
‘Taylor . Mills, Cowp. 525. 8 Broughton’s Case, 5 Rep. 24.
5Paul v. Jones, 1 T. R. 599. * Barclay v. Gooch, 2 Esp. 571.

6 Nisbet . Smith, 2 Bro. C.C. 579;  '°Sedg. on Dam. 323, 359, 4th ed.
428 Actions on Contracts oF InpEMNITY

not enable a party to maintain an action for money paid, even when
it has been accepted as payment and satisfaction of the old debt.
In the first case Lord ELLenporoven said: “There is no pretense
for considering the giving this new security as so much money
paid for the defendant’s use. Supposing even the case of a note or
bill of exchange, as the current representative of money, to have
been rightly decided, still this security, consisting of a bond and
warrant of attorney, is not the same as that, and is nothing like
money.” In the latter case, Bayiuy, J., said: “The plaintiff in
this case has paid no money. It is said, indeed, that he has given what
is equivalent to it, and that it ought to be considered for this purpose
as mouey, and so it was held in Barclay ». Gooch. Butin Taylor v.
Higgins, the court, having the former case before them, held that
the action for money paid could not be maintained. There are,
therefore, at all events conflicting authorities on this point, the last
of which is in favor of the defendant; then, as the authorities
*differ, it becomes necessary to look at the reason for the
thing. No money has yet come out of the plaintiff’s pocket,
and non constat that any ever will; for if he recovers from the de-
fendant in the present action, he may never pay it over to B.” On
the other hand, Barclay v. Gooch was cited with approbation by the
court of exchequer in a recent case,” where they seemed disposed to
relax from the severity of former decisions; and it has since been
discussed and upheld by the court of exchequer in Ireland.*

[*291]

Sec, 421. Goods taken in execution.

Where a party, liable for another, pays money to save his goods
from being taken in execution, this will of course support an action
for money paid to the use of the other party.* But where the goods
were actually taken and sold under a distress for rent, it was held
that this action would not lie, because, upon the sale, the money
vested in the landlord as an instantaneous executed satisfaction of
the rent, and never was the money of the tenant at all." However,
in Rodgers v. Maw,’ where the goods of a surety had been taken in

1Taylor v. Higgins, 3 Hast, 169; 4 Exall v. Partridge, 8 T. R.308.
Maxwell v. Jameson, 2 B. & Ald. 51. * Moore v. Pyrke, 11 East, 52. And

? Rodgers 0. Maw, 15M. & W.444, see Yates v. Eastwood, 6 Ex. 805.
449, ® Ubi sup.

8 M’Kenna 2, Harnett, 13 Ir. L. R.
206.
By rus Surety against Taz Desror. 429

execution for the debt of the principal, the court of exchequer,
without deciding the point, seemed strongly of opinion that the
amount for which they sold might be set off as money paid. They
pointed out that a writ of ji. fa. directs the sheriff to make “so
much money” of the defendant’s goods, and said, “We cannot see
upon what principle a man may not set off money paid by.the pro-
duce of his goods, as well as money paid indirectly! without any
sale of his goods.” They express a twofold doubt, as to the appli-
cation of Moore v. Pyrke to the case under discussion, and as to
the principle of that decision, and postponed the case that the
defendant might put the question upon the record, with a view to
a writ of error, which, however, was not done. No final decision
was given.

Sec. 422. Transfer of stock. Mortgage.

It has also been held that a transfer of stock does not support a
count for money paid.”

*Our courts hold that the giving of a mortgage is not
payment, nor even taking possession of the estate for the
purpose of foreclosure, since the land is still only a security for the
money ; * but where the equity of redemption has been released, and
the conveyance of the land was received in discharge of the debt
due from the plaintiff, they hold that it should be considered the
same thing as if the plaintiff had actually paid the money. The
creditor received it as money, or as an equivalent for money. To
the principal debtor it was immaterial whether the payment was
made in one way or the other.* It has been decided in several
States, that in such a case the plaintiff must prove that the thing
received, whether a chattel or land, was of the full value of the debt,
or agreed to be received as such.°

[#299]

Sec. 423. Interest.

In an action ona covenant of indemnity by a surety, who has
been compelled to pay money for his principal, the jury may give

1 Sic.; gy. directly ? 4 Ainslie v, Wilson, 7 Cow. (N.Y.)
2 Nightingal v. Devisme, 5 Burr. 662.
2589: Jones v. Brinley, 1 Hast, 1. 5 Bonney v. Seely, 2 Wend.(N.Y.)

2 West v. Chamberlin,8 Pick. (Mass.) 481; Howe o. Mackay, 5 Pick. 44.
336.
430 Actions on Contracts oF INDEMNITY

interest as damages. The damages ought to indemnify, and the
surety has been damnified by losing the interest of the money he
has paid. Such a case differs from that of direct contracts to pay a
sum of money, upon which no interest is given at common law,
because there the intention of the parties is presumed to be ex-
pressed in the terms of the contract. And the rate of interest which
the principal himself had allowed, in stating an account with the
surety, was held to be the proper basis of calculation.’

Sec. 424, Action by bail.

In an action by bail against their principal, the former may
recover all expenses incurred in rendering up the latter. In a case
of this sort Lord Extewsoroves said, “ The relation of principal and
bail is this, —the principal engages to indemnify the bail from all
expenses fairly arising from’ his situation as bail. I think the in-
demnity goes against all charges which are necessary to secure
themselves. The bail have a right to surrender the principal in
their own discharge, and for their own security. If, therefore, the
principal abscond, so that he *cannot be had, the bail may
[*293] i

take every proper and necessary step to secure him.” Where,
however, the bail employed an agent to find the principal, and then
refused to pay him, and was sued, it was held that he could not re-
cover against his principal the costs incurred in defending the action.’
But no damages can be recovered by bail in respect of his trouble
or loss of time in taking a journey to become bail. Because he does
this, not as a person employed by the defendant, but as a friend,
through motives of kindness." Where a defendant, removing an
indictment by certiorari, gives bail for his appearance and for the
payment of the costs, a contract on his part will be implied to in-
demnify the bail against the prosecutor’s costs. An express or im-
plied contract to indemnify the bail against the consequences of the
defendant’s not appearing would probably be contrary to public
policy, inasmuch as it would be giving the public the security of
‘ only one person instead of two.‘

1 Petre ». Duncombe, 20 L. J.Q.B. ® Reason ». Wirdnam, 1 C. & P.
242;2L. M.& P.107. And see Hitch- 434.
man v. Stewart, post, p.431. 4 Jones v. Orchard, 16 C. B. 614;
2? Fisher v. Fallows, 5 Esp. 171. 24L. J. C. P. 229.
By Surety acarst Co-Surerty. 431

Sec. 425. When surety may sue co-surety, and for what.

This action does not arise till it appears that one surety has paid
more than his proportion of what the sureties can ever be called
upon to pay, and then it only lies for the surplus. Thus if the
surety has paid less than his aliquot portion of the debt, and the
principal has then paid the residue, the right of action against the
co-surety will not run from the payment by the surety, but from the
payment by the principal, for until the latter date it does not ap-
pear that the surety has paid more than his share.

Sec, 426. Proportion for which each surety is liable.

The proportion which each surety was bound to pay as his own
share differed at law and in equity. At law it was calculated in
reference to the original number of sureties, though some of them
had become insolvent,’ or had died since the making of the con-
tract. But in the latter case the court of queen’s bench were
strongly of opinion that the personal representatives of the de-
ceased surety would be liable *for a share. In equity, how-

: : [*294]
ever, it was calculated according to the number who were
still solvent.’

This variance between the rules of common law and equity
ought now, under section 25 of the judicature act, 1873, to cease
and the rule of equity to prevail.

In equity, also, the surety was held entitled as against his co
sureties to interest on what he had paid. -

Sec. 427. Costs of suit.

Where the plaintiff and defendant had executed, as sureties, a
warrant of attorney, given asa security for the debt of their prin- .
cipal, and, on default by him, judgment was entered up on the
warrant of attorney, and execution issued for the amount due,
which the plaintiff paid with costs, it was held that he might re-
cover the moiety of the costs of the execution.” But he cannot
recover costs improperly incurred in defending an action brought by
the original creditor, and money paid by the principal debtor can-

1 Davies v. Humphreys, 6 M. & W. 4 Peter v. Rich, 1 Cha. Rep. 19.
153, 169. * Hitchman v, Stewart, 3 Drew. 271;

* Cowell 0. Edwards, 2B. & P. 268, 241L. J. Ch. 690.
® Batard 0. Hawes, 2 E. & B. 287. 6 Kemp 2. Finden, 12 M. & W. 421.
432 Actions on Contraots or Iypemnyiry

not be applied in payment of such costs, but must be taken in re-
duction of the debt itself.

Sec. 428. When sureties are bound by different instruments.

The right to sue a co-surety for contribution exists equally
whether they are bound in one instrument or several, and whether
they knew of each other’s engagements or not; for the payment by
one is equally a benefit to the others.” There is one important
difference, however, viz., that sureties bound by the same instru-
ment must all contribute equally, whereas, if bound by different
instruments, the sums in each ascertain the proportions of the prin-
cipal debt they are to pay.* But one surety, who has induced
another to enter into an engagement of suretyship, has no claim
_against him for contribution.* And so, if by arrangement between
themselves, one of the joint contractors, though liable to the cred-
itor, was not to be ultimately liable to pay any portion of the debt,
no action could be maintained against him.°

Where there are several under-lessees, at distinct rents, of
*separate portions of premises held under one original lease,
at an entire rent, and one pays the whole rent under a threat
of distress, he cannot have an action for contribution against the
other lessees. His only remedy is in equity.° But it is different
where several have bound themselves for the rent of an entire set
of premises. Therefore, where the plaintiff and defendant, who
were members of a committee, hired premises from D. for the use
of their company, and the plaintiff was sued for the rent, he was
allowed to recover contribution from the defendant, though the
latter had ceased to be a member of the committee before the rent
had accrued.’ ‘

[*295]

1 Knight 0. Hughes, 3 C. & P. 467. to indemnify the owner of a stack of
> Deering ». Winchelsea, 2B. &P. wheat which, being lawfully on the
270; Craythorne v. Swinburne, 14 land, is seized by the ecclesiastical

Ves. 160. commissioners under 6 & 7 W. IV,
32B. &P. 278. ch. 71, fora tithe-rent charge on the
4 Turner 0. Davies, 2 Esp, 478. land; Griffinhoofe v. Daubuz, 4 E. &

5 Per Lord CAMPBELL, Batard 0. B. 280; 24 L. J. Q. B. 20; affirmed,
Hawes, 2E. & E. 287; Craythorneo. 5 E. & B. 746; 25 L. J. Q. B. 287, in
Swinburne, 14 Ves. 160. Ex. Ch.

® Hunter ». Hunt, 1 C. B. 300. Nor " Boulter v, Peplow, 9 C. B. 493.
is a land-owner under any obligation
By Surery agarstr Co-Surety. 483

Sec. 429. Implied indemnity.

In most of the cases just treated of, the contract of indemnity
was express. But the obligation to indemnify arises, by implication
at law, in many cases where there is no express contract, and when-
ever it arises it operates in the same manner, and to the same extent,
as a special contract would have done. For instance, whenever one
man is compelled to pay a debt for which another is legally respon-
sible, the law will imply a promise by the latter to indemnify the
former. A familiar illustration of this rule was the case of a tenant
whose goods have been distrained for rent due by his landlord.' So,
where two persons are privy to the same contract, he who takes the
whole benefit of the contract is bound to indemnify the other
against the performance of its obligations. For instance, the,
assignee of a lease is bound to indemnify the original lessee against
breaches of covenant in the lease committed during his own hold-
ing.’ The purchaser of shares is bound to indemnify the vendor
against calls made subsequent to the purchase.’ On the same prin-
ciple, wherever a person has been induced to do. any act at the re-
quest of another, *which he does not at the time know to be
an unlawful act,* or to become the agent of another,’ or to,
accept the office of trustee for another,’ the person on whose behalf
he acts is bound to indemnify him against all consequences which
accrue from the proper performance of the act which he has done,
or the due discharge of the office which he has undertaken.

[#296]

Sec. 430. Acting as agent without authority.

This is the ground of those cases which we have already noticed,’
where a person, who professes to act as agent for another, has been
held liable for all the loss which a third party has incurred, in con-
sequence of acting on his supposed authority. The representation
of an agency amounts to a warranty of its existence, and carries

1 Exall v. Partridge, 8 T. R. 308. v. Enthoven, L. R. 9 Q. B. 241; 48
See England o. Marsden, L.R.,1C. L. J. Q. B. 90.
P. 529; 35 L. J. C. P. 259; Johnson 4 Dugdale v. Lovering, L. R., 10 C.
vo. Skafte, L. R., 4 Q. B. 700; 88 L. J. P. 196; 44 L. J.C. P.197; Caldbeck

Q. B. 318. v. Boon, 7 Ir. Rep. C. L. 82.
? Moule ». Garrett, L. R., 7 Ex. 101; 5 Frixione v. Tagliaferro, 10 Moo.
41 L. J. Ex. 62. P. C. 175.

3 Bowring »v. Shepherd, L. R., 6 Q. 5 Jervis ». Wolferstan, L. R., 18
B. 309; 40 L. J. Q. B. 129; Kellock Eq. 18; 43 L. J. Ch. 809.
7 Ante, p. 128,
55
434 Actions on Contracts oF INDEMNITY.

with it an implied undertaking to indemnify any one who acts
upon the assumption that such an authority exists, against all the
loss which naturally arises from the absence of such authority.

Thus, in Randell v. Trimen,! a stone merchant who had supplied
stone for the building of a church by direction of the architect, who
professed to act on behalf of the church building committee, but
had in fact no authority to do so, recovered from the architect not
only the price of the stone, but also the costs of an unsuccessful
action for the price which he had brought against a member of the
committee. In this case the architect persisted to the end in his
assertion of authority.

Sec. 431. Collen v. Wright,

+ In Collen v. Wright,’ which is the leading case upon the subject,
a land agent, believing that he had proper authority, assumed to let
a farm to the plaintiff, upon terms which the owner of the farm had
not in fact authorized. The owner refused to grant the lease. The
plaintiff filed a bill for specific performance, and finding from the
answer that the agent’s authority was denied, gave him notice of
the suit and ground of defense, and that the suit would be proceeded
with at his expense, unless he gave notice not to proceed, in which
[#297] case, as *in the event of the dismissal of the bill, he would be

held responsible for the costs. The agent replied simply
that the suit had been commenced without his privity or sanction,
and that he should resist any attempt to saddle him with costs. The
bill was dismissed. It was held that the plaintiff was entitled to
recover from the agent’s executors, besides money which he had
laid out on the farm, the expenses of the chancery suit. The de-
fendant was considered to have persisted in his assertion of author-
ity, so that it became unnecessary to consider whether he ought to
have had notice before the commencement of the suit. However
this might be, the plaintiff was considered to have acted reasonably
in the matter.

Sec. 432. Hughes v. Greame.
In a subsequent case the defendant, acting as broker for both
buyer and sellers, made a contract for the sale of wool to the plain-
1180. B. 786; 25L. J. C. P. 307. ered liable for the misrepresentation,

In this case the declaration charged independently of fraud.
fraud, but the defendant was consid- ° Ubi supra.
Faust Representation or AGENCY. 435

tiff, on terms which the sellers afterward repudiated, alleging, as was
the fact, that they had not authorized them. The defendant per-
sisted in his assertion of authority. There was no wool of a similar
character to be obtained in the market, and the plaintiff filed a bill
. against\the sellers to enforce specific performance of the contract,
and obtained an interim injunction to restrain the sale of the wool.
The bill was dismissed, and the injunction dissolved with costs on
the ground of the defendant’s want of authority. The plaintiff
was held to be entitled to recover from the defendant, although he
was his own agent as well as agent for the sellers, damages for the
loss of the bargain and the expenses of the suit, that is to say, the
taxed costs paid to the defendants in the suit and the plaintiffs own
costs as taxed between solicitor and client. It was objected that
the plaintiff should have proceeded by action at law instead of by
proceedings in chancery; but having regard to the peculiar charac-
ter of the wool, the court, putting themselves in the position of
jurymen, pronounced the plaintiff to have acted reasonably.’

Sec. 433. Spedding v. Nevell.

In a later case, the plaintiff, being in the occupation of a house
and shop under a lease which would expire in 1867, the defendant,
on behalf of his brother, the freeholder, whose rents he had for
some time received, agreed to grant the “plaintiff, at the ex-
piration of the term, a renewed lease, the plaintiff under-
taking in the meantime to put ina new shop front. This the
plaintiff did, and in 1865, without communication with defendant
or his brother, sold all her interest in the premises to one B for
1502. The freeholder refused to grant the lease, and the plaintiff,
in conjunction with B, filed a bill for specific performance against
him, which was dismissed, the defendant being examined on behalf
of his brother, and admitting that he had entered into the agree-
ment without consulting him and without authority. B was turned
out of possession and bronght an action against the plaintiff, and
recovered damages for the loss of the lease, Joss on re-sale of fix-
tures, loss of business and other matters. The plaintiff then sued
the defendant, and claimed from him damages for the loss of the

“lease, the expenses of the chancery suit, the damages which she has

[#298] |

é ' Hughes v, Greme, 33 L. J.Q. B. 335.
i)

436 Imetizep InpEmnirty.

been compelled to pay B, and the costs of B’s action. She was
held to be entitled to the value of the term as enhanced by the ex-
penditure contemplated by the agreement itself, and to the cost of
the chancery suit, but not to the damages or costs which she had
sustained in consequence of her resale to B. These last were
clearly too remote. They were not the natural consequences of the
defendant’s breach of contract, nor had a resale been contemplated
by the parties at the time when the contract for the new lease was
entered into.!

Sec. 434. Godwin v. Francis.

Still more recently, a case arose in which the plaintiff was held
entitled to recover a portion, but not the whole, of the costs which
he had incurred. The defendant and four other joint owners of an
estate had advertised it for sale, referring persons who wished to treat
to, amongst other persons, the defendant. The latter representing
that he had authority from his co-owners to do so, contracted to sell
it to the plaintiff for 10,5002., and sent him an abstract of title. The
other owners declined to complete at that price. The defendant wrote
to the plaintiff that there had been a misunderstanding, and that he
had thought that he was authorized to sell subject to the preparation
[#299] of a proper contract, but that it now *appeared that other
parties interested took a different view of the matter. The
estate was sold to some one else for 10,700/., and the plaintiff brought
an action against the ‘defendant and his co-owners for breach of
contract. He administrated interrogatories and obtained answers on
oath from all the joint owners, that they had not authorized the
defendant to sell, though they had sanctioned the advertisement. The
defendant’s answer was that he had had no express authority, but had
expected that his co-owners would concur in a sale for 10,5002.
The plaintiff continued the action, contenting that the owners were
bound by the advertisement, but was nonsuited. He then sued the
defendant, and was held entitled to recover, first, the expenses of
investigating the title ; secondly, as damages for the loss of his bargain,
the difference between the contract price and the market price of the
estate, of which market price, the price at which it was afterward

' Spedding v. Nevell, L.R.,4C. P. Patchett, 7 E. & B. 568; 26 L. J. Q.
212; 88 L. J. ©. P. 183; Simonso. B. 195.
Fauszt Representation or AGENOY. 437

sold was pruma facie evidence; and it may be observed that, both in
this and the last case cited, the defendant was taken to be in the same
position with respect to this head of damage as the vendors would
have been if they had been bound by contract but had refused to carry
it out; thirdly, he was held entitled to the costs of the unsuccessful
action up to the time when the answer to the interrogatories had
been received and considered by his legal advisers, after which, it
became unreasonable for him to proceed; lastly, he was held not
entitled to recover for loss on resale of horses and cattle which he
had bought for the purpose of stocking the land without notice to the
defendant and before investigating the title. Stress was laid on the
equivocal nature of the letter written by the defendant in which there
was noexpress disclaimer of authority to sell, as showing that the de-
fendant acted reasonably in commencing the action. But after receiv-
ing the answers to the interrogatories, he had proceeded, not in reli-
ance on the defendant’s authority, but on a mistaken view of the law
with respect to the extent to which the owners had bound themselves
by issuing the advertisement, and the costs so incurred did not flow
naturally from the defendant’s misrepresentation. * ,
The principle of all the above cases was, that a person to whom
*another makes a representation has a right td believe that,
ay . . , [*800]
it is true and toact upon it as true. Therefore, all loss which
accrues to him from the falsity of the representation is properly
chargeable against the person who has made it. But when the damage
would equally have accrued, whether the representation were true or
not, it is obviously not the consequence, direct or indirect, of the false
statement. Hence a plaintiff was held not entitled to recover the
costs of an action. where the defendant, believing that he had au-
thority, verbally agreed on behalf of the owners, to let a house to the
plaintiff for seven years, and gave him possession. The owners gave
him notice that the defendant had no authority to let to him, and
brought ejectment. The defendant advised him to resist,and he
did so, and had a verdict against him. It was held that he could not
recover the costs of the action from the defendant, because even if the
defendant had had the authority which he professed to have, the
plaintiff would have had no defense to the ejectment, the agreement
being verbal only, and the plaintiff having, therefore, only a tenancy

1 Godwin v. Francis, L. R., 5 C. P. 295; 39 L. J.C. P. 121.
438 ‘ Impetizp InpEmntry.

at will.! And, in another case, the plaintiff, being in treaty for the
purchase of the good-will of a business, was referred to B for the
particulars of the returns. He requested the defendant to make the
inquiry, and the defendant, as the jury found, falsely and fraudu-
lently represented to him that B stated them to average a certain
amount. The plaintiff bought the business, and finding the value
to be less than had been represented, without futher inquiry sued
the vendor for a false representation, but failed, as it turned out
that no such representation had been made either by B or the
vendor. The plaintiff thereupon sued the defendant, and obtained
a verdict for a sum which included the costs of the unsuccessful ac-
tion; but the court made absolute a rule to reduce the damages by
the amonnt of the costs, being of opinion that the action against
the vendor was not the natural consequence of the representation
made by the defendant. Eruz, ©. J., said: “The plaintiff would
have a right, no doubt, to assume that the defendant told him the
truth ; but that would form no ground of action against Mrs.
[#3 01] Clifton (the vendor), unless she knew that the *representa-

tion so made was false. There is a marked distinction be-
tween a false assertion by an agent, such as was made in this case,
and a false assertion by an agent that he has authority only to make
a contract.” In the latter case it isa natural consequence that an
action should be brought, but not so in the former.’

1 Pow »v. Davis, 1 B. &8. 220; 30 L. * Richardson v. Dunn, 8 C. B. (N.
J. Q. B. 257. 8.) 655; 30 L. J. CO. P. 44.
Lire Insvranor. 439

”

CHAPTER XVIII.

LIFE, FIRE, AND MARITIME INSURANCE.

Sec. 435. Life insurance, not a contract of indemnity.

436. Insurance against accident.

437. Fire insurance a contract of indemnity, Mode of valuing sub-
ject-matter.

438. Absolute value of property to be taken, not its value to the in-
sured.

439, Whether property destroyed should be taken at its value before
destruction, or at the amount for which it might be replaced:

440.. Insurance by parties having only a partial interest.

441. Collateral loss.

442, Expenses of saving property from fire.

, 443. Double insurance.

444. Marine insurance.

445. Loss, total, without abandonment.

446. Constructive total loss in the case of the ship; in the case of the
cargo.

447. Delay of voyage.

448. What loss of freight is total.

449. Nature of abandonment must be given; except in the case of
freight.

450. Insurance free of particular average.

451. Total loss of separate parcels of the cargo. Rolli v. Janson.

452. Care of goods differing in species.

453. Total loss charged into partial.

454. Value may be agreed beforehand.

455. Amount recovered on other policies must be deducted.

456. Mode of valuing goods or open policy.

457. Deduction for subject-matter withdrawn from risk.

458. Valuation of freight.

459. Salvage.

460. Valuation of partial loss to ship.

461. New for old.

462. Valuation of partial loss of goods.

463. Partial loss of freight.

464. Charges incurred for the preservation of the vessel.

465. Liability of insurer to reimburse a general average loss.
440 Lire Insurance.
Suc. 466. How bound by foreign adjustment.
467. General average.
468. Sources of contribution.
469. Things sacrificed contribute.
470. Only property exposed to risk contributes,

471.
AT2.
473.
474,
475.
476.
477.
478.
479,
480.

Freight, when contributory.
Valuation of loss of goods.
Jewels, etc. Deck goods.
Ship. When totally lost.
Where goods have been sold,

Mode of valuing the property saved.
In the case of the ship.

Goods.

Freight.

Example of adjustment.

Destruction for probable injury.
Freight.

Sec. 435. Life insurance. Not a contract of indemnity.

The two former of these heads require little remark. A life in-
surance is a simple contract to pay such a sum at the death of the
insured, and neither more nor less than this sum, with interest,
under 3 & 4 W. IV, ch. 42, § 29, can be recovered. It was once
decided, in a remarkable case, arising out of the debts of William
Pitt, that a life insurance, when entered into by a creditor of the
party insured, was a contract of indemnity, and that he could only
recover upon it the amount of debt still unpaid when the policy be-
came due.’ This decision was for a series of years rather acquiesced
in than confirmed, while in practice it was uniformly disregarded by
the insurance offices, who always paid the amount of the policy
without asking any questions as to the existence of the debt. The

1Godsell v. Boldero, 9 East, 72;
generally, in this country, a life insur-
ance policy is treated as a contract of
indemnity; Bevin v. Conn. Mut. Ins.
Co., 23 Conn. 244; and if the policy
is made to acreditor he can recover no
more than his debt; American, etc.,
Ins. Co. v. Robertshaw, 26 Penn. St.
189; Rivers v. Gregg, 5 Rich. (8. C.)
Eq. 274. But a policy for a much
larger sum, payable to the creditor in
trust for such other persons as the
debtor may designate, is good for the
full sum insured. American, etc.,
Ins. Co. ». Robertshaw, ante. The
statutes of the several States gene-

rally provide that certain relatives of
a person may insure his life for their
benefit; if no such statutory provision
exists the person in whose name the
policy is taken must show an insur-
able interest in the life; Ruse 7. Mu-
tual Ins. Co., 23 N.Y. 516; but an
assignee of a policy need not show
any such interest; St. John v. Ameri-
can Mut. Ins. Co. 18 N. Y. 81; Val-
ton 2. National, etc., Ass’n, 20 N. Y.
82. The fact that the statute of limi-
tations hasrun upon the debt does
not destroy the creditor’s insurable
interest. Rawls 0. American, etc.,
Ins. Co., 27 N. Y. 282.
Fire Insvranon. 441

decision itself was simultaneously overruled, at law and in equity.’
It is now settled that the statute, 14 Geo. III, ch. 48, § 3,? which
enacts, ‘‘ that no greater sum shall be recovered from the insurers *
than the amount or value of the interest of the insured in such
lite,” refers to the interest possessed at the time of making the
policy.

Sec. 436. Insurance against accidents.

Of course, an insurance against injury to life or limb by acci-
dents is strictly a contract of indemnity. In case of death, the
amount is regulated by the sum insured. Where the injury falls
short of death the damages are not to be *estimated by any [#302]
proportion between the amount of injury sustained by the
accident, and the amount of loss by death. The true measure is
the amount of injury the plaintiff has sustained, not exceeding the
entire sum insured ; that is, the expense and pain, and loss, it may
be of a limb, connected with the immediate accident; but not the
remote consequences that may follow, according to the pursuit or
profession which he may be following. Therefore, loss of time or
profits cannot be considered, otherwise one party, whose time was
more valuable than that of another, would, for precisely the same
personal injury, receive a larger remuneration.*

Sec. 437. Fire insurance a contract of indemnity. Mode of valuing subject-

matter.

A fire insurance differs from a life insurance in being properly a
contract of indemnity ; the insurer engaging to make good, within
certain limited amounts, the losses sustained by the assured in their
buildings and effects.* Most fire policies contain provisions by

‘Dalby v, India and London Life
Assurance Co., 24L.J.C.P. 2; 150.
B. 365. Law vo. Indisputable Assur-
ance Co., 1 K. & Johns, 223; 24 L. J.
Ch. 196.

? Extended to Ireland by 29 & 30
Vict., ch.42. By 30 & 31 Vict., ch.
144, assignees of policies who have
given notice may sue in their own
names.

5’ That is, whether upon one policy
or many. Hebdon v. West,3B. &S.
579; 82 L. J. Q. B. 85. In that case
a promise by the person whose life was
insured, to employ the plaintiff for

56

seven years at a certain salary, was
considered to be a pecuniary interest
in the life to the extent of as much of
the period of seven years as remained
unexpired at the time when the policy
was effected.

‘Theobald o. Railway Passengers
Assurance Co., 10 Ex. 45; 23 L. J.
Ex. 249.

5 Per Lord CAMPBELL, Dalby 2. In-
dia and London Life Assurance Co., 15
C. B. 865; 24 L. J. 0. P. 6. “Insur-
ance is a contract by which a person
in consideration of a gross sum, or of
a periodical payment, undertakes to
449

Fre Insurance.

which the company is at liberty either to pay the amount of the
loss, or to supply the like quality or quantity of goods with those
burnt or damaged by fire, and rebuild the premises themselves.’

P
pay a larger sum on the happening of
a particular event,” Smith’s Common
Law, 299; ‘‘a contract whereby, fora
stipulated consideration, one party
undertakes to indemnify the other
against certain risks,” 1 Phillips on
Insurance, § 1; ‘‘by our law it is re-
garded as a guarantee or contract of
jndemnity.”” Addison on Contracts,
Phil. Am. ed., 553. ‘‘A wager,”
says COLERIDGE (afterward judge), in
his argument in Paterson v. Powell,
9 Bing. 322, ‘‘is a contract for the
payment of an absolute value; but a
policy of insurance is essentially a
contract of indemnity; for every
policy of insurance must insure some
thing or person from some risk to
which that thing or person is liable.
That is, must indemnify the assured
from the consequences attendant on
the happening of that risk; and the
risk insured against ought to be one in
which the party insured has an inter-
est.” .

Mr. Phillips, in his very excellent
work upon Insurance, vol. 1, § 4,
says: ‘‘As to the essential part of
this contract, it does not differ from a
bond of indemnity, or a guaranty of a
debt, since the obligor takes upon him
certain risks to which the obligee or
creditor would otherwise be exposed.
The only difference is in name, and the
form of the instrument.”

“The contract of insurance,” says
Eiisworta, J., in Glendale Mfg. Co.
». Protection Ins. Co., 21 Conn. 31,
“is a contract of indemnity, upon the
terms and conditions specified in the
policy of insurance. * * * The
insurer undertakes, for a compara-
tively small premium, to guarantee the
insured against loss or damage upon

1See Forms in Park on Insurance,
and Marshall on Insurance. When they
have once elected to re-instate they are
bound to do so orto pay damages for
not doing so, though performance may
have become impossible; Brown 2.
Royal Insurance Soc., 1 E. & E, 8538;
28 L. J. Q. B. 275; decided upon de-
murrer, and dissentiente, Erie, J. In

the exact terms and conditions agreed
upon, and no other.” Porter, in his
“Contract d’Assurance,” No. 4, calls
it a species of contract of sale, the as-
sured being the vendor, and the as-
surer the vendee, and the thing sold is
the risk attached to the thing insured.
And different authors have given vari-
ous, and entirely different definitions
of the term and the nature of the con-
tract, some describing it asa partner-
ship, others as a mandate, and still
others as a contract of letting and
hiring; and it may justly be said, that
bya process of subtle reasoning either
one of these definitions may be quite
plausibly sustained; but, whatever
may be the recognized nature of the
contract elsewhere, by our law, it is
regarded as a contract of indemnity,
by which one party, for a legal con-
sideration, undertakes to indemnify
the other against loss from casualties,
within the scope of the risk assumed.
But there are instances in which the
contract assumes a different character,
and becomes something more than a
mere indemnity, as will be seen by
reference to matters hereafter stated in
the text. Itis believed, however, that
the class of cases, in which the effect
of policies has been so extended, are
wide departures from principle, and
that the interests of both the insured
and the insurer would be better pro-
tected bya strict adberence to the
doctrine that such contracts are mere
contracts of indemnity, personal in
their character, and not available ex-
cept to the insured himself or those
holding the contract by proper assign-
ment. See Wood on Fire Insurance,

p.4

this case the commissioners of sewers
had caused the structure insured to be
taken down, as being in a dangerous
condition. The court expressly de-
clined to state upon what principle
the damages were to be assessed.
Morrell o. Irving Fire Ins. Co., 83 N.
Y. 429, is also an authority that an
election to rebuild converts the con-
Frre Insurance. 443

There is a remarkable dearth of decisions in England on the sub-
ject of damages in the case of fire insurance; probably on account of
the liberality usually displayed by the companies.! The question
was, however, very fully discussed in an American case, in which
some leading principles were laid down, with that fullness which
characterizes the judgments *of the transatlantiv courts. The:
plaintiff was lessee. of a term, which would expire on the Ist
September. Upon the land was a movable building. He had the
option of either renewing his lease, or taking away the building
with him. It was insured for 1602. with the defendants. On the
15th of August it was burnt, the lessee having at that time given no
notice to renew the lease. The only question at the trial was as to
its value. Evidence was given that the building, if suffered to re-
main on the premises, was worth 200/., but that if taken away, it
would only, as a separate chattel, be worth 407. The defendants
contended, that, as at the time of the fire no notice to renew the
lease had been given, it must be presumed that the plaintiff did not
intend to renew it, and therefore the building should be valued at
40., which was all it would be worth to him when taken away. The _
plaintiff, on the other hand, claimed to recover the whole amount of
the policy, on two grounds. First, that the sum named must be
taken to be the ascertained value of the subject-matter of insurance.
Secondly, that the intrinsic value of the building as it stood should
be the standard of measurement, and not its value in reference to
his mode of dealing with it. The judge ruled in his favor on the
latter ground; and this ruling was decided to be correct by the
supreme court of New York.’ The first point made by the plaintiff
was given against him, the court holding, on the analogy of marine
insurance, and on the authority of two English cases,* that “ the
recovery of the assured must be regulated by the value of the prop-

[*303]

tract of insurance into a building con-
tract; and that the damages in case of
partial performance will be the amount
required to complete the building by
making it substantially like the one

? There have been numerous decis-
ions in the United States which, with
those in Great Britain, will be found
collected in Sansom’s Digest of Fire
Insurance, and in Wood on Fire In-
surance.

destroyed; and that where two com-
panies have elected to rebuild, the en-
tire damages may be recovered from
one company, leaving them to seek
contribution from the other.

2 Laurent v. Chatham Fire Insurance
Co., 1 Hall, 41. ;

3 Lynch »v. Dalzell, 4 Bro. P. C.
431; Sadlers’ Co. ». Babcock, 2 Atk.
554.
444

Fire Iysurance.

erty; for if the policy be a personal agreement to indemnify him
against loss or damage, his claim will be satisfied by the reimburse-
ment to him of the actual value of the property at the time, which
is the true amount of his loss by the peril ;” and that the ampunt
named did not operate as an agreed valuation of the subject-matter.’

1 Except in cases where the policy is
valued, the right of the assured to a
recovery upon his policy is only com-
mensurate with his actual loss, within
the limits of the sum insured. If the
loss is total, and the sum insured is
less than the value of the property, the
insurer must pay the full amount in-
sured; but if the loss is total, or par-
tial, and the insurance exceeds the
loss, the sum insured is to be reduced
by such an amount as represents the
excess of insurance over the value. To
illustrate: If a policy is issued to A
upon his dwelling-house for $1,000,
which, at the time of the issue of the
policy, fairly represents its insurable
value, if no depreciation or deteriora-
tion of the property transpires between
the issue of the policy and the loss, the
amount insured would be a fair meas-
ure of recovery, but not necessarily the
legal measure. The contract is one
of indemnity, and the assured’s right
of recovery must be measured by the
actual loss. The value of the property
at the time of loss, and not its value
at the time of the issue of the policy,
is to be taken; and this applies as
well in favor of the assured as of the
insurer. Thus, B takes out a policy
upon a stock of dry goods for $10,000,
which, at the time of insurance, fairly
represents its usual line of stock; but,
before any loss transpires, a decline in
prices of that class of goods occurs,
and by such decline the value of his
stock is reduced one-third, one-half,
or to any extent. B cannot recover
the amount insured, although his stock
remains the same in quantity, nor, al-
though the. goods in fact cost him the
amount insured, but only such a sum
as the goods were actually worth at
the time of loss. Not what they cost
him; Snell ». Del. Ins. Co., 4 Dall.
(U, S.) 480; Carson v. Marine Ins. Co.,
2 Wash. C. C. (U.S.) 468; not neces-
sarily what it would cost him to re-
place the goods, but the sum which
the goods were worth when they were

- against.

destroyed by the casualty insured
It is their value at that time,
and not at any prior or subsequent
time, that indicates the extent and
measure of his loss,and, consequently,
the measure of his recovery. Hoffman
». Western M.& F.Ins.Co., 1 La. Ann.
216; Hercules Ins. Co. 7, Hunter, 14
C. C. S. (Sc.)1137; Ellmaker o. Frank-
lin F. Ins. Co., 5 Penn. St. 183; Com.
Ins. Co. v. Sennett, 37 id. 205; Equit-
able F. Ins. Co. v. Quin, 11 L. C. 170;
Savage v. ‘Corn Exchange Ins. Co., 36
N.Y.655; Atwood v. Union, etc., Ins.
Co., 28 N. H. 234; Ela v. French, 11
id. 356; Douglass v. Murphy, 16 U.
C. (Q. B.) 118; American Ins. Co. 2,
Griswold, 14 Wend.(N. Y.) 399; Wills
». Wells,8 Taunt. 264; Wolfe », How-
ard Ins. Co., 7 N. Y. 583. Therefore
it is competent for the insurer, on the
one hand, to show a deterioration in
the value of the property, arising from

-any cause, for which the insurer is not

responsible, in reduction of the claim
of the assured, as a depreciation in
prices and values of that species of
property; that it was damaged or di-
minished in value by age, or any other
cause; and, on the other hand, the as-
sured may show that the value of the
property was largely increased; that
prices ruled higher than when the
property was insured; that it has been
improved and increased in value, or
any fact that tends to show what the
value of the property, at the time of
the loss, actually was.

If, however, the change in values
arises from temporary causes, not
likely to be permanent, or to affect the
intrinsic or market value of the goods
for any considerable period, such cir-
cumstances may be shown, and, if
established, the value of the property
is to be ascertained irrespective of
such temporary change. McQuaig
% Quaker City Ins. Co., 18 U. C. (Q.
B.) 180.

If the property is damaged, the dif-
ference between the value of the prop-
Fire Insvranor.

445

“The undertaking is to pay the amount of the actual loss or damage,
but with the restriction of the amount of the payment to the sum

mentioned in the policy.”

erty in its damaged condition, and its
value before it was injured, is the
measure of recovery. This leaves the
insurer at liberty to show, if he can,
that the property at the time of the
fire was worth less than new property
of the same class; that it had been
damaged by causes other than those
insured against,or any facts that show
or tend to show that the property was
deteriorated in value; and, on the
other hand, the assured may show that
the property was not damaged, or any
fact that shows or tends to show what
its real value was. Hoffman 0. West-
ern, etc., Ins. Co, 1 La. Ann. 216;
Western, etc., Ins. Co. ». Trarisporta-
tion Co., 12 Wall. (U. 8S.) 201; Her-
cules Ins. Co. ». Hunter, 14C. C. (8c.)
1137.

In a Pennsylvania case—Com. Ins.
Co. v. Sennett, 37 Penn. St. 205—the
policy provided that the loss or dam-
age should be estimated according to
the true, actual cash value of the prop-
erty at the time of the happening of
the loss. The policy covered agricul-
tural implements, and the assured
sought to recover their value as esti-
mated in the manufacture of each ma-
chine before it had been tested in the
field. But the court held that this was
not the fair criterion, but that the re-
covery must be limited to what they
were actually worth at the time when
the fire happened, and that this must
be ascertained by testimony. This
tule, while permitting the cost of the
property to be shown, as one of the
elements of value, yet very properly
ignores it as the true test. The actual
cost of production may largely exceed
the price for which the property can be
sold, and consequently its actual value,
and that would bea harsh, as well asa
dangerous rule, that compelled the in-
surer to pay more than the property
could be sold forin the ordinary course
of business.

In the case of buildings, it would
seem that the measure of recovery
should be the actual value of the prop-
erty in the condition it was in at the
time of loss, taking into consideration
its age and condition, and not necessa-

rily what it would cost to erect a new
building. The assured should be al-
lowed the value of his building at the
time of loss, and if, by reason of age or
use, it is less valuable than a new build-
ing, erected upon the same plan, of simi-
lar materials, and of the same dimen-
sions, the insurer should be allowed for
such difference arising from deteriora-
tion. Atna Ins.'Co. v. Johnson, 11
Bush (Ky.), 587; 5 Ben. F. I. C, 798.
This rule, however, does not apply
where the insurer elects to rebuild. In
that case, he is to be allowed nothing
for the difference between the value of
anold and a new building. If he would
avail himself of the advantages of de-
terioration, he must pay in cash. He
cannot charge the insured with the
burden of paying or allowing to him
the difference arising in consequence
of his election to erect a new building.
That would permit a person to make
another his debtor against his will,
which the law does not permit. It is
for the jury to say what the actual
value of the building was, in view of
all the facts, and their finding is con-
clusive. Brinley v. National Ins. Co.,
11 Metc. (Mass.) 195. Where there is
unreasonable delay in repairing, after
notice is given of its intention to do
so by the insurer, the insured is enti-
tled to damages for the building by
the action of the weather; American
Central Ins. Co. ». McLanathan, 11
Kan. 533; 5 Ben. F. I. C. 491; and for
the rent of the premises during such
delay. Home Mut. Ins. Co.»., Garfield,
60 Il, 124;14 Am. Rep. 27. See § 130.
The rule is applicable alike to build-
ings, machinery, or other property, that
the value is to be determined by the
condition the property was in at the
time of loss, and in arriving at the
measure of loss, it is proper to show
what the expense of similar new build-
ings, machinery, or property would be,
and then ascertain what the difference
in value is between the new and that
which was destroyed, and the differ-
ence, if any, is to be allowed to the in-
surer. In Vance v. Forster, 2 Craw. &
D. 118, the policy covered machinery,
and in an action for the loss, the court.
446

Firr Insurance.

Sec. 438. Absolute value of the property to be taken, not its value to the

insured.

*
pees his favor.

held that the state and condition of the
property, at the time of loss, must be
considered by the jury, and what it
would cost to replace it, and that they
might ascertain what would be the en-
tire cost of new machinery, and then,
whether the mill would be better, and
how much, with new machinery, than
with that destroyed, and that the dif-
ference between the value of new ma-
chinery and that which was destroyed
should be deducted from the entire
expense of the new, and the remainder
would express the measure of re-
covery.

The value of the building as such,
and not what the assured loses by way
of interruption to his business, loss of
profits, etc., is the measure of recovery ;
‘Welles », Boston Ins.Co.,6 Pick.(Mass.)
182; Menzies v. N. British Ins. Co., 9
C.C. (Sc.) 694; Niblo v. N. A. Ins.Co.,
1 Sandf. (N. Y.) 551; Wright »o. Sun
F, Ins. Co, 1 Ad. & El. 621; but if
the value of the building is put in issue
by the pleadings, the rental of the
buildings may be shown. Cumberland,
etc., Ins. Co. v. Schell, 29 Penn, St. 31.
When the loss is total, and exceeds the
sum insured, the whole sum named in
the policy is due. Miss. Mut. Ins. Co.
o.Ingram, 34 Miss.215; Peddie». Que-
bec F. Ass. Co., Stuart (Sc.), 174;
Phillips ». Perry Co. Ins. Co., 7 Phila,
(Penn.) 673; Aitna Ins. Co. vo. Tyler,
16 Wend. (N. Y.) 385; Richmondville
Seminary, etc., ». Hamilton Ins. Co.,
14 Gray (Mass.), 459; Nicolet v. Ins.
Co., 3 La. 366. ;

This rule is extended to mortgagees
or any other persons holding an inter-
est in the property as security fora
debt, or against loss to themselves.
Their actual loss is the measure of re-
covery. If the mortgage debt, or other
claim,has been paid in full or quieted,
nothing is due upon the policy, be-
cause all insurable interest is gone. If
it has been paid in part, or in anywise
been partially satisfied, only the bal-
ance remaining due can be recovered,
for that is the limit of the insurable
interest. Hadley v. N. H. F. Ins. Co.,
55 N. H.110; 5 Ben. F. 1. ©. 700; 5. P.

*On the second point their judgment was equally clear in
“But it is said that the policy is a contract of

Ill. Mut. Ins. Co. ». Andes Ins. Co.,
ante. But it is only when payments
have been actually made before loss,
that any deductions can be made. The
fact that the mortgage debt was paid,
or assigned to a third person, after a
loss under the policy, does not benefit
the insurer, and cannot be set off,
against the insurance. Davis». Quincy,
etc., Ins. Co., 10 Allen (Mass.),118; 5
Ben. F. I. C. 35. Nor can the insurer
avail himself of the fact, that the
property covered .by the mortgage,
even after the loss, is ample security
for the debt, or that it is worth partly
as much as the debt. The loss must
be paid to the extent of the mort-
gagee’s interest, covered by the policy,
irrespective of the value of the secu-
rity. Strong ». Manufacturers’ Ins.Co.,
10 Pick. (Mass.) 40; Ins. Co. ». Upde-
graff, 21 Penn. St. 513; Carpenter 0.
Washington Ins. Co., 16 Pet. (U. 8S.)
496; Kernochan ». Bowery Ins. Co.,
17 N. Y. 428; Sussex, etc., Ins. Co. 2.
Woodruff, 26 N. J. 541; Foster v.
Equitable Ins.Co., 2 Gray (Mass.), 216;
Boston & Salem Ice Co. o. Royal Ins.
Co., 12 Allen (Mass.), 381; Clark 2.
Wilson, 103 Mass. 221; King 2. State,
etc., Ins, Co., 7 Cush, (Mass.) 1. So
where goods are insured by a carrier,
bailee, commission merchant, agent or
other person insuring for himsélf, the
measure of recovery is his interest in
the goods, which is represented by his
charges paid’ thereon, or to be paid,
and his expected profits therefrom;
Putnam »v. Mercantile Ins. Co.,5 Mete.
(Mass.) 386; Savage v. Corn Ex. Ins.
Co., 36 N.Y. 655; Field on Damages,
447 et seq.; unless by law or general
usage he is liable to the bailor for the
full value of the goods, in which case
he would be entitled to recover the
value of the goods at the time of loss;
DeForest v. Fulton Ins. Co., ante; and
the same is true, where the policy cov-
ers “goods his own, or held in trust or
on commission.” Waring ». Indem-
nity Ins, Co., ante; Turner v. Stetts, 28
Ala.420; Waters 2 Monarch Ins. Co.,
5 El. & B1.870; Ayres o. Hartford Ins.
Co., 17 Iowa, 176; Hough ». People’s
Fire Insurance.

447

indemnity, and that the principle of indemnity which pervades the -
msurance must control the construction of the policy; and upon

Ins.Co.,36 Md. 398; DeForest», Ful-
ton Ins. Co., 1 Hall (N. Y.), 84; Lee
». Howard Ins. Co., 11 Cush. (Mass.)
324.

As between re-insurers, the same
tule prevails, The re-insurer is enti-
tled to the benefit of any settlement
made by the original insurer with the
original assured, and cannot be called
upon to pay more than the original in-
surer pays; Ill. Mut. Ins. Co. vo. The
Andes Ins. Co., 67 Il1.362; 5 Ben. F.
I. C. 456; except, possibly, in cases
where the original insurer has become
insolvent, although upon what ground,
or upon what principle a different rule
prevails in such cases, it is difficult to
see or understand. That any distinc-
tion should be made between a solvent
or insolvent company in this respect
is not warranted by principle or the
rules of fair dealing, and is wholly re-
pugnant to the rules ordinarily pre-
vailing as to insurable interest or ad-
justment of losses.

Where a policy is issued for a term
upon goods in a store, manufacturer’s
stock, or other property which the in-
surer knows or ought to know the as-
sured does not intend to keep con-
stantly on hand, but simply desires
and expects the policy to cover goods
of the same class, the assured is enti-
tled to recover for any goods of the
same class, although none of them
were on hand when the policy was is-
sued. This rule applies to household
furniture, and, in case the policy is
assigned with the consent of the in-
surer, the policy will be operative. to
cover the furniture of the assignee in
the same building and for the same
sum, Cummings v. Cheshire, etc.,
Ins. Co., 55 N. H. 457; 5 Ben. F. I.
C. 769.

Where several policies cover, in part,
the same property,as where one policy
covers stock manufactured and un-
manufactured, and another covers
manufactured stock simply, the rule
of adjustment, as stated by Tuomas, J.,
is ‘‘ascertain the amount of manufac-
tured and unmanufactured stock, sep-
arately. Then, as the value of the
entire stock is to the sum insured, so
would be the amount of the unmanu-

factured stock to the result sought.
For example: The entire stock is, say
$2,100, of this the manufactured is
$1,500, the unmanufactured $600.
The amount insured on both, is $700.
Then, as $2,100 is to $700, so is $600
to the result sought.” Blake o. Ex-
change, etc., Ins.Co,, 12 Gray (Mass.),
265; 4 Ben. F. 1. C. 806. .

Where there are two or more poli-
cies upon the same property, and one
of them contains a provision that
‘‘when property is insured by this
company solely, three-fourths only of
the value will be taken, and in case of
loss will pay only three-fourths the
value at the time of loss,” and that
‘tin case of loss or damage of property,
upon which double insurance exists,
the company shall be liable to pay only
such proportion thereof as -the sum
insured by this company bears to the
whole amount insured thereon, such
amount not to exceed three-fourths
the actual value of the property at the
time of loss.” Therule of adjustment
is, first to ascertain the actual value of
the property at the time of loss, from
which deduct one-fourth the amount.
Then ascertain the total amount of in-
surance, and divide the amount of loss
by the amount of insurance, and mul-
tiply the quotient by the amount of
the policy, and the product will be the
amount for such insurer to pay, if no
more than the amount of the policy.
If it exceeds the amount of the policy
the loss is total, and the full amount
covered by the policyis due. If less
than the amount of the policy, only
such proportional part is due. Thus,
where under such a policy $2,000 is
insured, and there is other insurance
to the amount of $3,000, the insurer is
liable only for two-fifths of three-
fourths of the actual loss, Haley v.
Dorchester, etc., Ins. Co. 12: Gray
(Mass.),545; 4 Ben. F.I. C. 348. If,
however, the other policy or policies
do not cover all the property covered
by such policy, the value of the prop-
erty not covered by the other policies
is not subject to such proportionate
assessment, and the policy must bear
that portion of the loss alone. Thus,
where a policy with such provisions
448

Fire Insvrance.

this principle it is insisted that the value of the property to the
assured at the time of the loss, cireumstanced as it may then be in

as were stated, supra, covered $2,000,
“on his stock in trade, being mostly
chamber furniture in sets, and other
articles usually kept by furniture deal-
ers,” and there were two other policies
of $1,500 each, covering simply the
assured’s “stock of furniture,” and
which did not embrace articles usually
kept by furniture dealers, such as
paints, oils, varnish, etc.,and there was
a loss, which the jury found amounted
to $5,917.50, and the value of the
paints, oils and varnish was $826.84—
the court held that the value of those
articles should be deducted from the
total loss, and two-fifths of the re-
mainder added to three-fourths of
$826.84, would give the amount for
which the defendant company was lia-
ble. Haley v. Dorchester, etc., Ins.
Co., 1 Allen (Mass.), 536. Where there
are no such limitations upon liability,
and there are several policies covering
the same property, and the loss is less
than the insurance, the amount of the
loss divided by the whole amount of
insurance, and the quotient, multiplied
by the amount of each policy, gives
the proportion that each is to pay.
Where, as in the case previously cited,
the policies do not all attach alike, if
the property destroyed is covered by
all the policies, and the property also
covered by one or more of the other
policies is not destroyed, the value
thereof is not to be deducted, because
each policy-holder is liable for the de-
struction of any of the property, to the
extent of the sum insured by it. Com.
». Hide & Leather Ins. Co., 112 Mass.
136.

Where, as is sometimes the case, a
policy contains a condition that “where
property is damaged by removal from
a building which is exposed to fire,
said damage shall be borne by the as-
sured and insurers in such proportion
as the whole sum insured bears to the
whole value of the property insured,
of which proof in due form shall be
made by the claimant,” in case of a
destruction of a part of the property
by fire, and an injury to a part by re-
moval, the rule of ascertaining what
eel ares of such damage each should

eal, is to ascertain the total value of

the property at risk, the damage by
removal, and this each party must pay
in proportion to their respective inter-
ests. To illustrate: The total value
of the stock is $20,000; the loss by
removal is $1,000, and the amount of
insurance is $1,000. The interest of
the assured is nineteen-twentieths of
$1,000, and the interest of the insurer
one-twentieth, leaving $50 of such loss
for the insurer to pay, and the balance
of $950 to be borne by the insured
himself. Peoria M. & F. Ins. Co. o.
Wilson, 5 Minn, 53; 4 Ben. F. 1. C.
497.

Unless the insurers,in their policies,
stipulate that other prior or subsequent
insurarrce shall be kept on foot during
the life of their respective policies, the
assured may cancel either or any of
them, and the insurer is entitled to no
deduction of a proportional part which
such insurance would have borne if
kept on foot. If the insurers desire
to avail themselves of such relief, they
must stipulate therefor in their poli-
cies, and the fact that the policy, on
its face, states “ other insurance exists
upon the property to the amount of
$5,000,” is not a warranty that such
other insurance shall continue. to exist
for a single hour even after the policy
is issued. It is enough, if true when
the policy was made. Forbush v.
Western Ins. Co., 4 Gray (Mass.), 337;
Haley v. Dorchester, etc., Ins. Co., 12
id. 545.

Where there has been a partial loss
paid under a policy, and subsequently
there is a total loss of the same prop-
erty, the assured is only liable for the
difference between the sum insured
and the amount paid under the partial
loss. Thus, if a policy covers a build-
ing for $500, and there is a partial
loss of $50, which is paid, the sum in-
sured is thereby reduced to $450, and
if subsequently there is a total loss,
$450 is the maximum limit of the in-
surer’s liability. Curry 2. Com. Ins.
Co., 10 Pick. (Mass.) 535. Where
the policy simply covers the interest
of the assured under a lease, the limit
of recovery is the unexpired term.
Niblo v. North American F. Ins. Co.,
1 Sandf. (N. Y.) 551.
Firr Insvranor. 449

reference to his use and enjoyment of it, is the loss he sustains by
the destruction of it, and is the measure of his indemnity for the
loss. It will be at once seen that if this principle of indemnity is to
be admitted, the extent and value of the recovery will in every case
vary with the special and peculiar circumstances of the insured, and
the local advantages or disadvantages of the building, and the uses
to which it is applied; and the intrinsic value of the building will
form no criterion of the loss of the proprietor in case of its destruc-
tion. A building, for example, which the necessities of the owner
compel him to offer at public sale for ready money, will be worth to
him no more than what it will produce at such a sale; and a build-
ing for which there happens to be a great competition will com-
mand a much larger price than its true value. Are these collateral
and incidental circumstances to enter into the estimate of value?
Two houses of equal value may, from their local situation, be very
unequal in the revenue they produce to their proprietors; would the
loss of them, if destroyed by fire, entitle the proprietors to different
indemnities, in proportion to the rents or the revenues of the ten-
ants? It is the tenement upon which the insurance is made, and
the actual value of it, as a building, is the loss of the insured in case
of its destruction by fire. To that measure of indemnity the pro-
prietor is entitled, however unproductive the property may be, and
he is entitled to no more, whatever revenue he may have derived
from the tenement.” “It is of no importance whether the tene-
ment stands on freehold or leasehold ground, or whether the lease
is about expiring, or has the full time to run, when the fire occurs,
or whether it is renewable or not. The condition of the policy is
satisfied if the title and ownership are in the insured at the time of
the insurance, and at the time of the loss. And the measure of his
indemnity is the amount of his interest in the tenements when de-
stroyed by fire, *notwithstanding that the whole interest
would have expired the very next day, or soon after the loss
occurred. But whether there may not be ineidents, or special cir-
cumstances so intimately connected with the premises, or so perma-
nently attached to them, as to affect their intrinsic value, or the
insurable interest of the party in them, we are not prepared to say,
and it is not material to the decision of the question before us to
inquire, for this clearly is not such a case.”
57

[*305]
450 Fire Insurance.

Sec.439, Whether property destroyed should be takenat its value before de-
struction, or at the amount for which it might be replaced.

There is little authority upon the question, whether the thing in-
sured should be estimated at its value when destroyed, or at the
amount for which it might be replaced. In the case of goods the
two values would be in general synonymous. Half worn furniture,
' for instance, might be replaced by second-hand articles of precisely
similar value. Of course articles of vertu, such as antiques, statues,
or pictures, which could not be replaced at all, or only at an extrava-
gant cost, would clearly come under the former rule. The question
would probably arise in the case of houses. Suppose a house, from
age or dilapidation, to be only worth 700. when burnt, but that it
could not be rebuilt at all without an outlay of 1,000., and that the
policy was for the latter amount, would the larger or only the lesser
sum be recoverable? I apprehend still the lesser. It might, no
doubt, be argued, that the value of the house was not to be taken at
the amount for which it would sell, but at the amount which the owner
could make by keeping it, and this value could only be replaced by put-
ting him again in possession of a house of similar capacity, and that
the cost for which this could be done ought to be the measure of his
indemnity. The plain answer seems to be, that the policy is a con-
tract to insure against all loss caused by fire, but not against any
loss caused by time, weather, or any other source of dilapidation.
The effect of the opposite rule to that for which I contend would
be, in the event of fire, to throw upon the insurer the charge of
making good all want of repairs by the owner, however culpable ;
and all depreciation by lapse of time, however necessary. The in-
sured would step out of an old house into a new one at the expense
of the insurer.’

1The question arose in Ireland in
an action on a policy of insurance on
the machinery in a mill, and PENNE-
rater, B., ruling that the plaintiff
was not entitled to the full expense of
replacing new machinery in the mill,
said: ‘The loss to be estimated by
the expense the plaintiff would be at
in restoring the premises to the state
in which they were at the time of the
fire. But inasmuch as there may be a
difficulty or an impossibility in re-
storing the premises to the state in
which they were, I think it would be

a fair criterion to see what would be
the expense of placing new machinery
such as was in the mill before, and to
deduct from that expénse the differ-
ence in value between such new ma-
chinery, and the old machinery
which was destroyed. I think
such difference is the actual loss sus-
tained by the plaintiff.” Vance o.
Forster, Irish Circuit Reports, 47
(1841). See, also, per CHannELt, B.,
at Nisi Prius, Times Fire Asso. Co. 2.
es 28L. J. Ex. 317;1 F. &F.
Frre Insurance. 451

It was assumed all through the American case which I *have
quoted, that the value should be taken at the time of the
destruction, on whatever principles it was to be calculated. But this
cannot have much weight, as the policy expressly provided that the
loss was to be estimated, “ according to the true and actual value of
the property at the time the fire shall happen.”

The analogy of marine insurance seems decisive upon this point.
There the well-known rule of deducting one-third new for old, in
valuing repairs (see post, Marine Insurance), is based upon this prin-
ciple. The same has been lately decided in a kindred case, viz., that
of a covenant to repair by a tenant. It was held that when the
house was burnt down, the tenant was entitled to deduct from the
full cost of rebuilding, the increased value which the new premises
would have, as compared with the old. The residue only could be
recovered for action of breach of covenant.!

[*306]

Sec. 440. Insurance by parties having only a partial interest.

Bailees, who have an interest in goods, such as wharfingers and
warehousemen, may insure them to their whole value. Where the
property is entirely destroyed, the whole of it must be made good 3
and not merely the particular interest of the assured in it. They
will be entitled to keep for their own indemnity as much as will
cover their interest in the goods, and they will be trustees of the

residue of the money for the absolute owners.’

1 Yates ». Dunster, 24 L. J. Ex.
226; 11 Ex. 15,5. C.

2 Waters v. Monarch Assurance Co.,
5 E.& B. 870; 25 L.J. Q. B. 102; L.
& N. W. Ry. Co. v. Glyn, 1 E. & E.
652; 28 L. J. Q. B. 188; and see N.
British, etc., Insurance Co. v. Moffatt,
L.R., 7 C. P. 25; 41 L. J. C.P. 1;
and Martineau v. Kitching, L. R., 7
Q. B. 436; 41 L.J.Q. B. 227. See,
also, as to the insurable interest of ten-
ants from year to year, Simpson 2. Scot-
tish Union Insurance Co.,1 H.& M.618;
82 L. J. Ch. 329; and compare Niblo
v. N. American Insurance Co., 1 Sandf.
(N. Y.) 551. There have been de-
cisions in America that a mortgagee
who has insured buildings may re-
corer though the mortgaged premises
be still ample security for the debt;
Kernochan », N. York Bowery Fire
Insurance Co., § Duer (N. Y.), 1; af-

firmed 17 N. Y. 428 (1858); or though
the mortgagor have rebuilt; Foster .
Equitable Life Insurance Co., 68 Mass.
216 (1854). Whether the insurers
after payment are equitably entitled to
an assignment of the mortgage debt
has been disputed; see Kernochan v.
N. Y. Bowery Insurance OCo., supra.
and Angell on Insurance, $59. But
it is now held that where the insurer
pays the loss he may, by paying to
the mortgagee the balance of the
mortgage, be subrogated to his rights.
See Wood on Fire Insurance, title Sub-
rogation. In England the mortgagor
usually insures in the joint names of
himself and the mortgagee.

Many persons may have an insura-
ble interest in the same property, aris-
ing from different sources, and stand-
ing upon entirely distinct and different
grounds,as the owner in fee; French
452 ~
Sec, 441. Collateral loss.

[#307]

Fire Insurance.

*No loss of a merely collateral nature can be recovered.
herefore, the landlord of an inn who had insured “ his in-

terest in the said Ship Inn and offices,” was not allowed to recover

». Rogers, 16 N. H. 177; Allen v.
Franklin F. Ins. Co., 9 How. Pr. (N.
Y.) 501; Strong ». Manufacturers’
Ins. Co., 10 Pick. (Mass.) 40; Hig-
ginson v. Dall, 13 Mass. 96; Locke v.
N. Am. Ins. Co., id. 61; a mortga-
gee of the same premises; Holbrook
v. American Ins. Co., 1 Curtis’ C. C.
(U. S.) 193; Davis o. Quincy, etc.,
Ins. Co., 10 Allen (Mass.), 113; Fox
». Phenix Ins. Co., 52 Me. 333;
Traders’ Ins. Co. v. Roberts, 9 Wend.
(N. Y.) 404; Ins. Co. 0. Updegraff,
21 Penn. St. 513; the assignee of a
mortgagee; Ins. Co. v. Woodruff, 26
N. J. Law, 541; a person who is per-
sonally responsible for the mortgage
debt; Waring v. Loder, 53 N. Y. 581;
a mechanic erecting buildings thereon
under an entire contract, or a mate-
rial-man for materials. Franklin Ins.
Co. v. Coates, 14 Md. 285; Protection
Ins. Co. ». Hall, 15 B. Monr. (Ky.)
411.
_ A mortgagor and mortgagee may
each insure the premises for their
separate benefit. The mortgagee,
however, can only insure to the
amount of his claim or debt; and in
case of loss, the insurer is entitled to
an assignment of his interest, which
the mortgagor may insure to the full
value, and can recover the same, not-
withstanding the mortgage, and the
mortgagee is entitled to no benefit
therefrom. Carpenter v. Providence
Wash. Ins. Co., 16 Pet. (U. 8.) 495;
French v. Rogers, 16 N. H.177; Allen
v. Franklin Ins. Co., 9 How. Pr. (N.
Y.) 501; Strong v. Manuf. Ins. Co.,
10 Pick. (Mass.) 40; Curry 7. Common-
wealth Ins. Co., id. 535.
. An attaching or levying creditor;
. Mickles ». Rochester City Bank, 11
Paige’s Ch. (N. Y.) 118; Mapes 2.
Coffin, 5 id. 296; Herkimer v. Rice,
27 N. Y. 163; Springfield F. & M.
Ins. Co. v. Allen, 43 id. 889; a sheriff
or his deputy have an insurable inter-
est in the property attached or levied
upon. In case of the deputy, how-
ever, the insurance should be in the
name of the sheriff; White v. Madison,

26 N. Y. 117; but it seems that the
expense cannot be taxed against the
parties; Burke v. Brig M. P. Rich, 1
Cliff, (U. 8.) 509; and where, by law,
a judgment is a lien upon real estate,
a judgment creditor, even though exe-
cution was not issued. Rohrback ».
Germania F, Ins. Co., 62 N. Y. 47.

A person in possession under a con-
tract to purchase; Shotwell v. Jeffer-
son Ins. Co., 5 Bosw. (N. Y.) 247;
Ayres v. Hartford Ins. Co., 17 Iowa,
176; M’Givney v. Phoenix Ins. Co., 1
Wend. (N. Y.) 85; or who has an
equitable interest in the estate.
Rohrback v. Aitna Ins. Co., 1 T. & C.
(N. Y.) 339; Redfield ». Holland Pur-
chase Ins. Co., 56 N. Y. 354.

An executor in the estate of his in-
testate, even where by law the title

‘vests in the heirs, he holding in trust

for the beneficiaries under the will or
by distribution. Savage v. Howard
Ins. Co., 52 N. Y. 502; Herkimer 2.
Rice, ante; Phelps ». Gebhard. 9
Bosw. (N. Y.) 405. An adminis-
trator, where the personal estate is
insufficient to pay the debts; Clin-
ton v. Hope Ins. Co., 45 N. Y. 454;
but when the personalty is sufficient,
uere? Beach v. Bowery Ins. Co., 8
Abb. Pr. (N. Y.) 261, x.

A tenant for a term has an insur-
able interest to the extent of the value
of his leasehold interest; New York v.
Hamilton Ins. Co., 10 Bosw. (N. Y.)
537; and a tenant who erects buildings
under a right to remove them may
insure them as his own. Hope, etc.,
Hee Co. v. Brolaskey, 35 Penn. St.

2

A tenant by curtesy or dower;
Harris 0. York, etc., Ins. Co., 50
Penn. St. 341; Ins. Co. v. Drake, 2 B.
Monr. (Ky.) 47; a tenant in tail; Curry
2. Commonwealth Ins. Co., 10 Pick.
(Mass.) 535; a married woman in her
own estate, and her husband, where
by law he is given a present interest
therein. Mutual Ins, Co. v. Deale, 18
Ma. 26.

Where the plaintiff’s wife was the
owner of real estate in her own right,

¥
Fire Insvrance.

453

a claim for rent paid by him to his landlord, for the hire of other
apartments while those damaged in the inn by fire were under-
going repair, or for the loss or damage sustained by him by reason
of various persons refusing to go to the Ship Inn whilst the apart-

and two days after her marriage, in
consideration of her indebtedness to
him before her marriage, executed to
him a paper of the following tenor:
“T do hereby certify that Lowe to J.
Rohrback (the husband) the sum of
$700,and the sum of $25, for each and
every month from July 14th, 1863,
and for every month he may live with
me henceforth, without any deduction
whatever, which amount shall be a lien
upon my property,” and the husband
procured an insurance upon the prop-
erty, it was held, in an action upon
the policy, that, under the statute of
New York relative to married women,
that this created a lien upon her prop-
erty that constituted a sufficient in-
surable interest; Rohrback ». Attna
Ins. Co., 1 T. & C.(N. Y.) 339; butif
the husband, having no present legal
or equitable interest therein, takes a
policy in his own name, it is bad. Em-
inence, etc., Ins. Co. v. Jesse, 1 Metc.
(Ky.) 523. Or, indeed, any person
who has a certain, definite, or fixed
interest in the property, so that an in-
jury thereto or destruction thereof
would result in pecuniary loss to him
as a purchaser under execution before
a conveyance has been made to him.
ARtna, etc., Ins. Co. v. Miers, 5 Sneed
(Tenn,), 189; Herkimer v. Rice, ante ;
Rohrback »v. Germania F. Ins. Co.,
ante.

A receiptor of property attached, or
any person who, at the request of the
owner, becomes security for its return
to the officer seizing or attaching it;
Fireman’s Ins. Co. v. Powell, 16 B.
Monr. (Ky.) 311; an agent, bailee,
trustee or any person having the cus-
tody of property for another, who is
responsible for its safe return; Aitna
Ins. Co. v. Hall, 13 B. Monr. (Ky.)
411; Franklin Ins. Co. v. Coates, 14
‘Md. 285; Graham v. Fireman’s Ins.
Co., 2 Dis. (Ohio) 255; one partner
to the extent of his interest in the
property of the firm; Converse 2, Citi-
zens’ Mut. Ins. Co., 10 Cush. (Mass. )
37; Obl o. Eagle Ins. Co., 4 Mas. (U.

8.) 172; and a policy in the name of
one partner will only cover his legal
interest therein; Bailey ». Hope Ins.
Co., 56 Me. 474; unless through ignor-
ance, fraud or mistake on the part of
the insurer, the policy was issued in
the name of one owner, when it should
have issued in the name of all. Man-
hattan Ins. Co. v. Webster, 59 Penn.
St. 227. Even where the partnership
is merely nominal, and the business is
really carried on for the benefit of one
of them, a policy may be taken out in
the name of the firm, because in such
acase, all the persons who permit
their names to be used as partners are
liable for the debts of the firm, and,
therefore, have an interest in the
preservation of the property. Phoenix
Ins. Co. v. Hamilton, 14 Wall. (U. 8.)
504.

A person who has an interest in the
profits of property, or in the cargo of
a ship, may insure the same. Patapsco
Ins. Co. v. Coulter, 8 Pet. (U. 8.)
222; New York Ins. Co, v. Robinson,
1 Johns. (N. Y.) 616. But when prof-
its are insured it must be qua profits;
Sun Fire Office v. Wright, 3N. & M.
819; Bennett’s F. I. C; 449; Leonarda
v. Phoenix Ins. Co., 2 Rob. (La.) 131;
Ellmaker v. Franklin Ins. Co., 5 Penn.
St. 183; Niblo o. N. A. Ins. Co., 1
Sandf. (N. Y.) 551; Menzies vo. N.
British Ins Co., 9 C. C. 8. (Sc.) 694;
but the profits need not be specifically
defined. It is enough if the ‘policy
covers the profits as ‘‘on profits” in
connection with an insurance on a
business of any kind. Eyre v. Glover,
16 East, 218. In ascertaining the
profits, they are to be treated as a
mere excrescence upon the value of the
goods beyond prime cost. The gain
over the cost. Lord HLLENBOROUGH,
in Eyre v. Glover, ante.

And, generally, any person who has
a pecuniary interest in property may
insure it to the extent of his interest.
See Wood on Fire Insurance, 468-
535.
454 Firz Insurance.

ments so damaged were undergoing repair. The court said, as to
the last item, that if a party would recover such profits as these, he
must-insure them as profits.!

Sec. 442, Expenses of saving property from fire.

It is not settled whether insurers in fire policies are liable for ex-
penses incurred to save the destruction of the thing insured. Mr.
Phillips is of opinion that equitably, and from analogy of general
average under a marine policy, the underwriters against fire on land
ought to be answerable for the expenses of measures taken success-
fully to save the insured property, for which, had it been lost, they
would have been liable to make indemnity.’

Sec. 443. Double insurance.

As fire insurance is a contract of indemnity, if the owner of prop-
erty insures it in different offices, he cannot recover more than the
single value from all together ; and any one office, which pays more
than its share, has a right of contribution from the others. But
where two people each insure the same property in respect of differ-
ent rights, each is entitled to recover the full value, or the whole
amount due under his policy, if it is less than the value. And there
is no right of contribution between the offices. If one of the two
who insures has also a right of action against the other who has in-
sured, in respect of the loss which has occurred, the office, which
has insured the person with the remedy over, succeeds to his right
of remedy over, and then it is a case of subrogation. But in such
a case the office, which has insured the person against *whom
the remedy exists, has no claim for contribution against the
office which has insured the person who has the remedy. These
principles were laid down in the following case, where all the facts
above suggested concurred. A wharfinger held goods on behalf of
their owner, and by the custom of trade was absolutely liable to the
owner for any loss that might arise, inciuding loss by fire. The
owner, for his own further protection, insured the goods with X.
The wharfinger insured them with Z.; they were lost by fire. Z.
paid the amount of the policy to the wharfinger, who paid it over to
the owner. A suit was then instituted between the two insurance

[*308]

In re Wright & Pole, 1 A.&E. 2d ser. 694; Niblo v. N. American In-
621; so Menzies v. North British In- surance Co., 1 Sandf. N. Y. 551. ~
surance Co., 9 Cases in Court of Sess., * 1 Phill. on Ins, 626, 3d ed.
Marie Insvranon. 455

offices to determine their respective liabilities. It was decided, that
the fact that the owner was independently insured with X. was no
reason for exempting Z., or for making X. contribute for the bene-
fit of Z. But if the payment had been made by X. to the owner;
that office would have been entitled to all his remedies against the
wharfinger ; and, through the wharfinger, would have been repaid
by the office which insured him.! In other words, each office would,
as regards ultimate liability, stand in exactly the same position as
the party whom it had insured.

Sec. 444, Marine insurance.

In discussing the doctrine of damages in marine insurance, we
cannot complain of a paucity of decisions. They are as numerous
under this head as they were scanty under the two former. One
fertile source of debate has arisen out of the right of the insured,
in some cases of partial loss, to abandon the subject-matter of insur-
ance to the insurer, and then claim as if the loss had been complete
at first. It will be necessary then to examine: first, when the loss
is originally total; secondly, when it can be made so by abandon-
ment ; thirdly, when it is always partial ; and fourthly, how the loss
in either case is to be valued.

1. Where the loss is total without abandonment.

Sec. 445. Loss, total, without abandonment.

This takes place where the subject-matter of insurance is utterly
destroyed, or lost to the owners by detention, seizure, barratry, and
so forth. And where there has once been a total loss, as where a ves-
sel and cargo were barratrously taken out of their course by the crew,
it makes no difference *that part of the property subsequently [#30 9]
comes into the hands of the owners, by an act which was

‘not done, nor authorized by them. Such property, however, is sal-
vage for the benefit of the underwriters.’ And it will be equally a
total loss though the thing exist in specie; provided it has lost its
character, and has ceased to be of any use to the owners as the thing
which it originally was,* though it possess some value of some inferior

! North British and Merc. Insurance ° Mullet 2. Shedden, 13 East, 304;

Co. v. London, Liverpool, and Globe Mellish ». Andrews, 15 id. 18.

Insurance Co., 5 Ch. D. 569; 46 L. J. 3 Dixon v. Reid, 5 B. & A. 597.
Ch. 537. * Dyson v, Rowcroft, 3 B. & P. 474.
456 Marre InsuRANcE.

form.’ And though after the time of the disaster it still retains,
and is salable under its original denomination, still if it is clear
that the damage is so great that before the completion of the voy-
age “the species itself would disappear, and the goods assume a
new form, losing all the original character,” this is also a total loss.
Because the risk does not end till the termination of the voyage,
and that which must necessarily end in a total loss at the comple-
tion of the voyage, must be treated, as a total loss at the time of the
accident.” Though it is a total loss if the goods are in the hands of
strangers, not under the control of the assured,* the seizure of the
ship of goods by the lender on a bottomry bond; or by the admir-
alty asa lien for salvage dues, is not such a seizure as can cause a
total loss; as it arises out of the acts of the owner himself, and not
out of any of the perils insured against.‘ Whether the injury can
be repaired or not will depend upon the circumstances of the place,
as an accident may be remedied in one port while it cannot possibly
be in another. In the latter case also the loss would be total. °

Sec. 446. Constructive total loss,in the case of the ship. In the caseof the
cargo.

2. Constructive total loss is where the thing exists in specie, and
there is a physical possibility of repairing, or preserving it, so as
that it may reach the termination of the voyage in its original char-
acter. But where this would have to be done at such an extrava-
gant cost, taking all the circumstances of the case into consideration
that the subject-matter of insurance would not be worth the money
[#310] laid out upon it, this *is a total constructive loss.* The cir-

cumstances to be taken into calculation in such a case, if it is
the ship that is damaged, will be the possibility and cost of repair
in the particular place where the injury has happened, and the means

1 Cambridge v. Anderton, 2 B. & C.
691; Irving ». Manning, 1 H. L. C.
287.

2 Roux »v. Salvador, 3 Bing. N.C.
266, 278.

31d. 279. |

4 Rosetto v, Gurney, 11 C. B.176.

® Moss v. Smith, 9 C. B. 102.

* Read ». Bonham, 3 B. & B. 147;
Parry v. Aberdein, 9 B. & C. 411;
Young v. Turing, 2M. & Gr. 593; Moss
». Smith, 9C. B.102. In the case of

an exceptional ship, for which there
is no demand, the value to sell in the
market may be much less than the
true value; and it has been suggested
that in such a case a more proper cri-
terion will be the price given for the
ship when new, with a deduction for
wear and tear. Per Woop, V. C.;
African Steamship Co. 0. Swanzy, 2
K. & J.664; 25 L.J. Ch. 870; Grainger
2. Martin, 2B. & §.456; 31 L.J.Q.B.
186; 4B. & S.9, in Ex. Ch.
Marie Insurance. 457

of procuring money.'! Where the loss has happened to goods, the
question is, “ Whether it was ‘ practicable’ (in the business sense
. of the word),* to send the whole or any part of the cargo to its
destination in a marketable state?” To determine this question,
the jury must ascertain the cost of unshipping the cargo; the cost
of transhipping it into a new bottom (where necessary); the cost of
drying and warehousing it; and the cost of the difference of transit,
if it can only be effected at a higher sum than the original rate of
freight. Add to these items the salvage allowed in proportion to
value of the cargo saved — and the loss will be total if the aggre-
gate exceed the value of the cargo, when delivered at the port of
discharge. But if the aggregate do not so exceed the value of the
cargo, or of that part of it saved, the loss will be partial only.’

Sec. 447. Delay of voyage.
Where the insurance is on the cargo, a mere retardation or inter-

ruption of the voyage, even if it amount to a loss of the whole
season, is not a ground for abandonment. To justify this there
must be an entire loss of the whole adventure, by the destruction,
absolute or constructive, of the cargo itself in consequence of the
delay. And the utter destruction of *the vessel makes no [#311]
difference, if another can be found before the goods are de-
stroyed by delay.”

Sec. 445. What loss of freight is total,
There is a loss of freight, either absolutely or constructively,

4 Anderson v. Wallis, 2M. &S.240;
Lozano v. Janson, 2 H. & E. 160; 28
L. J. Q. B. 3837. If the ship puts
into port in consequence of injuries
received or because she has become
unfit to proceed upon her voyage, and

‘Irving v. Manning, 1H. L. 287;
2C. B. 784; 1 id. 168. From the es-
timated cost of raising a submerged
ship must be deducted the general
average which would be contributed
by the cargo. Kemp 2. Halliday, L.

R., 1 Q. B.520; 6 B.& S. 757; 35 L.
J.Q. B.156, in Ex, Ch.

29 C. B. 103.

* Rosetto vo. Gurney, 11 C. B. 176;
Reimer v. Ringrose, 6 Ex. 263; Farn-
worth v. Hyde, L. R., 2 0. P. 304; 36
L. J.C, P. 83, in Ex. Ch. Sale of cargo
ordered by a foreign tribunal, and not
due to any peril insured against, cannot
be treated as a constructive total loss.
Meyer v. Ralli, 1 C.P.D. 358; 45 L.
J.C. P. 741; Hancox v. Fishing Ins.
Co., 3 Sum, (U.S.) 132.

58

her cargo is sold at such port ‘and in-
vested in other goods which never
reach the port of destination, the loss
is total. N.Y. Ins. Co. v. Robinson, 1
Johns. (N. Y.) 616.80, where a vessel
reaches her port of destination in a
leaky and damaged condition, but for
want of material she cannot be re-
paired there, and she cannot be sold
for enough to pay for repairs, the loss
is total. Stagg 0. U.S. Ins. Co., 8
Johns, Ch. (N. Y.) 84.

5 Hunt ». Royal Exchange Assur-
ance Oo., 5M. & 8. 47.
458 Marine Insurance.

where the ship is either absolutely or constructively unable to pro-
ceed on the voyage and earn it.! But if, where the ship has been
injured to such an extent as would have justified the owners in
abandoning, the master has not done so, but has repaired
however imprudently, and in fact earned freight, they cannot
afterward abandon on finding that the repairs cost more than the
ship and freight were worth.’ Nor is it any ground to claim as for
a total loss of freight, that the expense of repairing the ship would
exceed the whole amount of freight, if, taking the value of the ship
and freight both into consideration, it was prudent to repair. For the
contract by the underwriter is, that the ship shall not be prevented
from earning freight. Not that the freight shall be any profit when
earned.* And it makes no difference, that the cargo was so injured
by accident, that the delay and expense of drying and re-shipping
was greater than the freight was worth,* which comes under the same
principle. Nor that the owner, on hearing of an embargo on the
ship, abandoned to the underwriter on the ship, who consequently
became entitled to the freight, which was actually earned on the
removal of the embargo. Because this loss arose from the volun-
tary act of the insured, with which and its consequences the under-
writers on freight have no concern."

And so, in the later case, where a ship has sustained considerable
injuries at sea, and further injury on arriving at the port of destina-
tion ; the cargo was, however, delivered to *the consignees
who paid the freight. The owners abandoned to the in-
surers on the ship, who were held to be entitled to the freight, upon
which they sued the insurers on the freight; it was decided that
thep could not recover.’

[#312]

1 Green v. Royal Exchange Assur-
ance Co., 6 Taunt. 68; Idle v. Royal
Exchange Assurance Co., 8 id. 755;
or where the cargo is so damaged as
to render it impossible, except at an
expense which would greatly exceed
its value on arrival, to carry it to the
port of destination. Michael. Gil-
lespie, 2.C. B. (N. S.) 627; 26 L. J.
C. P. 806. Or where the ship has
been so delayed by a peril insured
against, that the charterers were not
bound to load the ship. Jackson v.

Union Marine Insurance Co., L. R.,
10C P. 125; 44 L. J. C. P. 27.

* Chapman ». Benson, 5C. B 330;
affirmed in H. L., Benson ». Chap-
man, 8C. B. 950; 2 H. L. Cas. 696.

3 Moss ». Smith, 9 C. B. 102.

“Mordy o. Jones, 4 B. & OC. 394:
Everth v. Smith, 2M. & S. 278. See,
however, Michael v. Gillespie, supra.

° McCarthy ». Abel, 5 East, 388.

* Scottish Marine Assurance Co. v.
Turner, 4H. L. Cas. 312, n.
Marine Insuranon. 459

Sec, 449. Notice of abandonment must be given, except in the case of freight.

Where a constructive loss is treated as total, immediate notice of
abandonment must be given to the underwriters. Otherwise the
owners can only recover as for an average ;! and if they once elect to
treat it as a partial loss, they cannot afterward make it total by
abandonment.” But the fact of a notice of abandonment having
been given, which was ineffectual as coming too late, is no bar to
their recovering for a total loss, if an absolute total loss does ultimately
arise from the cause upon which the constructive loss was originally
based. As where a ship’s papers were first taken away by a foreign
government and some months afterward—as the result of the same
act—she was finally seized.*

In the case of an insurance on freight, however, no abandonment
is necessary, for the simple reason that there is nothing to be aban-
doned.‘ There can never be a total loss of freight, except from the
inability of the ship to earn it, and from its having in fact not
earned it.’ The ship may be either utterly destroyed, or it may be
sold to third parties, or it may be abandoned to the underwriters on
the ship itself. In the first case, it can earn no further freight.; in
the second case, any thing earned by it, after the abandonment,
would, of course, belong to the owners; in the third case, to the
underwriters."

Sec. 450. Insurance free of particular average.

The question, when a loss which is not actually total can be
rendered so by abandonment, becomes of great importance in
case of the insurances free of particular average. Of course nothing
can be recovered upon them unless a total Joss can be made out. There-

[#313]

‘Mitchell ». Edie, 1 T. R. 608;
Martin v. Crokatt, 14 East, 465; Hunt
». Royal Exchange Assurance Co., 5
M. &S. 48; Fleming ». Smith, 1 H.
L. C. 518; Knight 0. Faith, 15 Q. B.
649.

* Fleming v. Smith, 1 H. L. C. 513.

8 Mellish ». Andrews, 15 East, 18.

4Green v. Ruyal Exchange Assur-
ance Co., 6 Taunt. 68; Mount ». Har-
rison, 4 Bing. 388; overruling Par-
meter v. Todhunter, 1 Camp. 541;
Potter o Rankin, L. R., 5 C. P. 341;
39 L. J. OC. P. 147, in Ex. Ch.; L.R.,
6 A. L. 88.

5 Moss v. Smith, 9 C. B. 94.

6 Case v. Davidson, 5 M. & S. 79;
affirmed, 2B. & B. 379; Stewart v.
Greenock Insurance Co., 2 H. L. €.
159. Where goods and ship belong
to the same owners, and there is no
pending freight, the underwriters on
ship are entitled to compensation for
the carriage of the goods in the ship
subsequent to the casualty. Miller
». Woodfall, 8 E. & B, 493; 27 L. J.
Q. B. 120. The underwriters are not
entitled to freight earned by another
ship into which the goods are trans-
ferred. Hickie v. Rodocanachi, 4H,
& N. 445; 28 L. J. Ex, 278,
460 Marine InsuRANCE.

fore, where an insurance of this nature was made upon silk, and it
became greatly damaged and stunk intolerably, so that it would have
been necessary to unship, examine, clean and dry it, the master sold
it where it was. The jury found that he acted as a prudent unin-
sured owner would have done, but that the silk could, at a reason-
ablé and a moderate expense, have been so treated as to be sent
home as silk. It was held that this could not be made a total loss,
and, therefore, nothing could be recovered.1 The principle, how-
ever, on which total and partial losses are distinguished is exactly
the same, whether the policy admits of particular average or does
not.”

Sec. 451. Total loss of separate parcels of the cargo. Ralli v. Janson.

It was at one time supposed that even where the insurance is free
from average, if the goods insured are in separate parcels, as hogs-
heads of sugar, or bales of silk, there may be a total loss of some,
though others are not injured within the terms of the policy.*. One
case went even beyond this rule. The insurance was on flax, war-
ranted free of particular average. The vessel was wrecked, and
part of the flax was saved from the wreck, part floated on shore, but
all the packages were broken up. No entire package came on
shore. This was held to be a total loss as to that part which was
never recovered at all.‘ The result would be to draw a distinction
between two things which are, in fact, identical ; viz., a partial loss
of the whole, and a total loss of part of the cargo. The court of
exchequer chamber reviewed these cases elaborately in Ralli v. Jan-
son,’ and decided that no such distinction existed; and that the fact
of goods, which were insured free from average, being packed in
separate parcels, was immaterial, unless these parcels were separately
valued and insured.

‘After thus overruling Davy »v. Milford, the law was laid
[314] *down to be that “where memorandum goods of: the same
species are shipped, whether in bulk or in packages not ex-
pressed by distinct valuation or otherwise in the policy to be sepa-
rately insured, and there is no general average and no stranding, the

1 Navone v. Haddon, 9 C. B. 30. Q. B. 300. The law is the same in

® Roux v, Salvador, 3B. N.C. 277. the United States, 2 Phillips on Insur-

3 Lewis v. Rucker, 2 Burr. 1170. ance, 1773, p. 459, 8d ed. See, as to

4 Davy o. Milford, 15 Hast, 559. what constitutes a separate insurance

5 Ralli v. Janson,6 E. & B. 422; oneach package, Entwisle v. Ellis, 2
8. C. nom. Janson v. Ralli, 25 L. J. H. &N. 549; 27 L. J. Bx. 105.
7”

Marine Insuranor. 461

ordinary memorandum exempts the urderwriters from liability for
a total loss or destruction of part only, though consisting of one or
more entire package or packages, and though such package or pack-
ages be entirely destroyed, or otherwise lost by the specified perils.”

Sec. 452. Case of goods differing in species.

In Ralli v. Janson the court expressly declined to say what the con-
sequence would be, if the goods were not all of the same species. Two
cases have since decided that where articles of different nature and
kind are insured under a general description, the underwriters may
be liable for a total loss of some of the articles, though the rest are
preserved. In the first, the insurance was by the master of a vessel
on “ master’s effects warranted free from all average.” He saved
his chronometer and a few other things, but the rest were totally.
lost. “He was held entitled to recover the value of the articles lost.
The word “ effects ” was considered to have been employed to save
the task of enumerating the nautical instruments, chronometer,
clothes, books, and other things of which they happened to consist."
In the other case, the insurance was on “goods” valued at a cer-
tain sum, and the insured put on board an emigrant’s equipment,
consisting of a variety of tools, materials, etc., in several small pack-
ages. All were lost except three small packages; it was decided
that he might recover as for a total loss of the rest.”

Sec. 453. Total loss changed into a partial.

3. The preceding remarks have necessarily involved a statement of
the cases in which only a partial loss can be claimed. It is only im-
portant to add that a total loss may be changed into a partial one by
matter subsequent ; and where a total loss has occurred by capture,
or in case of freight by embargo, which, by re-capture or removal of
the embargo, has been changed into a partial loss, in consequence of
salvage and other charges; unless the ship, by reason of the capture
and resulting loss and charge, is so valueless as, per se, to justify
abandonment.’ And it makes no difference that notice of

1 Duff 0. Mackenzie, 3 C. B. (N.S.) exist, but the circumstances must be

16; 26 L. J. C. P. 313. such that the assured may reasonably
? Wilkinson ». Hyde, 8 C. B. (N. be expected to take possession;
S.) 30; 27 L. J. ©. P. 116. Holdsworth ». Wise, 7 B. & C. at p.

3 Hamilton v. Mendes, 2 Burr. 1198. 799; Lozanov. Janson, 2 E. & E. 160;
To change the total loss into a partial 28 L. J. Q. B. 387.
loss the ship or goods must not only
462 Marivz InsvRANCE.

*abandonment was given, before the circumstances which
turned it from a total into a partial loss were ascertained.’
Even though at that time nothing had occurred to alter the charac-
ter of the loss;* nor even that the abandonment has been accepted
by the insurers.”

[#315]

Sec. 454. Value may be agreed beforehand.

4, The character of the loss being settled, the next thing is to as-
certain the value of the thing lost, which may be done either by
evidence after the loss, or by the previous agreement of -the parties.
For a policy of insurance is not a perfect contract of indemnity. It
must be taken with this qualification, that the parties may agree
beforehand in determining the value of the subject insured by way
of liquidated damages, as indeed they may in every other contract
to indemnify." Therefore when an insurance was made upon a ship
valued at 17,500/., and she suffered damage to her rigging and ma-
chinery in a storm, which could not be repaired for less than
10,5002., after which the ship would have only been worth 9,0002.; no
injury was done to her hull. The assured were allowed to abandon
and recover the whole sum.°

Sec. 455. Amount recovered on other policies must be deducted.

But the contract being one of indemnity, and both parties being
bound by the agreed value, an assured who has recovered under
other policies can only recover the difference between the amount
so received and the agreed value in the policy.

Sec. 456. Modes of yaluing goods on open policy.

Where there has been a total loss on all the goods, if the policy
is a valued one, the price fixed must be taken.’ Where the policy
is open, the value of the goods is fixed by taking their invoice price at
the port of lading, including premium of commission and insurance.’

‘ Bainbridge v. Neilson, 10 East, 5 Irving v. Manning, supra; Allen
329. ». Sugrue, 8 B. & C. 561.

2 Patterson v. Ritchie, 4M. & S. * Bruce v. Jones, 1 H. & C. 769; 32
393; Brotherston v. Barber, 5 id. L. J. Ex.-182; See ante as to fire in-
418. surance, p. 453.

2 M’Carty v. Abel, 5 East, 388. "Lewis v. Rucker, 2 Burr. 1171; Ir-

* Per Partuson, J., Irving 1. Man- ving ». Manning, 1 C. B. 168; 2 id.
ning, 1 H. L. ©. 287; 6C. B. 891; 784; 6 id. 391.
affirming S. C., 1 id. 168; 2id. 784. | ® Usher v. Noble, 12 East, 689.
Marine Insuranoz. 463

And, perhaps, a *payment made on: the shipment of goods
as the price of the privilege of putting them on board, may
be added to their value. Cut payments made for port charges, and
other incidental expenses at the loading port, by virtue of a charter-
party of which the insurers had no knowledge, cannot be added.?

[*316]

Sec. 457. Deduction for subject-niatter withdrawn from risk.

An insurance on cargo, or on goods, means the entire cargo, or
all the goods to which the policy attaches. Therefore, if a part of
the goods or cargo is safely put on shore, and the rest is lost, a pro-
portionate deduction must be made from the amount that can be
claimed from the insurers. And it makes no difference whether the
policy is valued or open. Because in each case, part of the subject-
matter has been withdrawn from risk.” On the same principle,
an insurance on freight, where nothing is said to the contrary,
is considered to be an insurance on the freight of a full
cargo or the charter of the entire ship. If, therefore, less
than the full freight would have been earned, had there been no
loss, a proportionate deduction must be made from the amount that
can be recovered, in the event of a loss.’

Sec. 458. Valuation of freight..

Where the insurance is on freight, and the policy is open, which
rarely happens, the usage, sanctioned by the decision, is to adjust
the payment on the gross amount of freight payable, and not on the
net amount after paying expenses.”

There may be a total loss of part of the freight, if the ship is so
damaged that she either cannot absolutely, or cannot, without ex-
travagant cost, be repaired so as to bring home that part. But in
estimating this, the cost must be calculated with reference to the
entire value of ship and freight, not to the value of the freight
only.’ In such a case, of course, an aliquot amount of the gross
freight is the measure of damage.

1 Winter v. Haldimand, 2B. & Ad. (N.S.), 640, 681.
649. 3 Forbes v. Aspinall, 13 Hast, 328;
? Tobin ». Harford, 13C. B. (N.S.) Denoon ». Home and Colonial Assur-
791; 32 L. J. C. P. 184; affirmed in ance Co., L. R.,7C. P. 341; 41 L.
Ex. Ch. , 170. B.(N. 8.) 528; 34 L. J. C. P. 162.
J.C. P. 87. So in America: Brook 4 Palmer 2. Blackburn, 1 Bing. 61.
». Louisiana Insurance Co., 4 Martin * Moss v. Smith, 9C. B. 104, 108.
464 Marie Iysurance.

Sec. 459, Salvage.

Tn all cases of constructive total loss, whether of ship, goods, or
[317] freight, the insurer is entitled to the benefit of all *that is
made out of the subject-matter after the injury, as salvage.’

The net salvage is that which remains after the expense of saving
it, which must therefore be made good to the owner, by the under-
writers who benefit by it, in their respective proportions.’

Where there is a policy of insurance on the freight of a specific
cargo, if the captain, being driven back and unable to proceed with
the original cargo, was yet able to proceed with a less cargo, on less
freight, the underwriters are entitled to the benefit of this.’

Sec. 460. Valuation of partial loss to ship.

Where the loss is partial in the case of a ship, the question is, to
what extent has she been injured by the accident? What was her
difference in value before and after it? An obvious mode of ascer-
taining this is, by finding out what has been properly and prudently
incurred in repairing the damage.* If, however, if the ship has been
sold in her damaged condition, under circumstances which do not
entitle the owner to claim for a total loss, the amount recoverable is
the difference between the selling price and the value of the ship at.
the commencement of the risk.* No allowance can be made for
repairs which have not been effected, unless the ship sold for less in
consequence of not being repaired. If she did, such difference of price
would be the result of the peril insured, and of this difference the
- cost of repairs would be the measure. A ship met with a collision,
returned to port and was repaired. On setting out again it was dis-
covered that she still leaked, and she returned again, and was again
examined, and for that purpose stripped of her lower strake of wales.
In consequence of the misconduct of the surveyors, in not replacing
her wales, her lower timbers decayed so rapidly by heat and rain, that
it finally became useless to repair her, and she was sold to be broken

1 Roux 0. Salvador, 3B. N. C. 281, of salvage. North of England Insur-
288; Green v. Royal Exchange Assur- ance Association ». Armstrong, L. R.,
ance Co., 6 Taunt. 72. Upon the 5Q. B. 244.
same principle, underwriters who have * Sharp ». Gladstone, 7 East, 24.
paid the value stated in the policy *Green ». Royal Exchange Assur-
upon a ship sunk through collision,as ance Co., 6 Taunt. 68, 72.
for a total loss, are entitled to the 4 Stewart v. Steele, 5 Sco. N. R. 927.

damages recovered from the owners * Lohrev. Aitchison, 2Q. B. D. 501.
of the other ship, which are in nature
Marine InsurAnoe. 465

up. This, of course, could not be claimed for as a *total loss,
the proximate cause of the injury not being a peril insured
against. The plaintiff, however, claimed to recover what would
have been the cost of replacing the wales (which had not been
replaced) asa partial loss. Held, that if he could have shown that
he was about to refit the vessel to put her into the state ofa sailing
ship, and that he meant to sell her as a sailing ship, that would have
been one of the expenses which he might have insisted on. His
measure of damage would then have been the expense of replacing
the wales, or the difference in value between the ship so dismantled
of her wales, and the ship with the wales put up again. But as she
was sold avowedly to be broken up, and as for that purpose she
would have fetched no more if the repairs had been executed, no
allowance could be made on account of them."

[*318]

Sec. 461. New for old.

As, however, it would be unfair that the underwriters should pay
the entire cost of the repairs, while the owner is put in a better posi-
tion than before by the substitution of new material for old, a usage
subtracting one-third of the cost on this account has sprung up.”
The rule, however, extends no further than the reason for it; and
therefore where the owner has derived no benefit, as where the vessel
was on her first voyage,’ or where the ship has never come into the
owner’s hands, being either sold or broken up,‘ no such reduction is
made.

Sec. 462. Valuation of partial less to goods.

Where there has been a partial loss upon goods, if the policy is
valued, the rule is as follows: As the price which the goods would
have fetched, if sound, on arrival at the port of delivery, is to the
difference between that price and their market value at the same
time and place, being damaged, so is the value in the policy to the

1 Stewart v. Steele, 5 Sco. N. R.

927.

2 Poingdestre v. Royal Exchange
Assurance Co., R. & Mood. 378; Lohre
v. Aitchison, 2 Q. B. D. 501.

3 Fenwick v. Robinson, 3 C. & P.
328; Pirie v. Steele, 8 id. 200. If the
policy provides that the deduction

59

shall not be made until the ship is of
a certain age, but shall be made after
that date, it becomes immaterial
whether the first voyage has or has
not been completed. Byrne »v. Mer-
cantile Insurance Co.,4 H. & C. 506.

4 Da Costa v. Newnham, 2 T. R. 407;
Stewart v. Steele, ubi sup.
466 Marie Insurance.

amount payable as loss. And it makes no difference that, if they
had not been damaged, they could have been kept and realized a
much larger sum afterward.1 Where the policy is not valued, the
#319) rule is still the same, *substituting “the invoice price plus

premium of insurance and commission,” for “the value in
the policy.” * The object and effect of the rule in either case is the
same, viz.: to indemnify the assured without injustice to the insurer.
The diminution in value is calculated by the relative price of sound
and damaged goods at the port of delivery, where they would have
to be sold ; because it is their price there which alone can determine
the ratio of loss. But the value in the policy, or the invoice price,
is taken as the standard upon which payment is to be made ; because
otherwise the loss to the insurer would depend upon something
against which he has not insured, viz.: the rise or fall of the market.
No allowance can be made in consequence of the fact that the dam-
age caused to part of the goods has caused the whole cargo to fall
in estimation, and has thereby affected the selling value of the un-
injured portion of the goods.*

Sec, 463. Partial loss of freight. :

There can only be a partial loss of freight, as distinguished from
a total loss of part of the freight, by reason of expenses incurred in
preserving it;* these, of course, create no difficulty in estimating.
A ship-owner on an insurance of freight may recover for the profits
which he would have made by carrying his own goods; for these
profits are of the same nature, whether he carries his own goods or
those of another.”

The extent of damages to which the underwriters are liable may
sometimes be very difficult to ascertain; as, for instance, where a
certain injury has happened from a cause insured against, and after-
ward a fresh injury, which is not insured against occurs, and no ex-
amination has taken place in the meantime ; the case, however, must
still be left to the jury, and the apparent impossibility of arriving
at a conclusion is no ground for directing nominal damages.’

1Lewis 0. Rucker, 2 Burr. 1167;.  * Cator 0. G. W. Insurance Co., L.
Cator v. G. W. Insurance Co., L. R, R., 8C. P. 552; 42 L. J. C. P. 266.

8C. P. 552; 42 L. J. C. P. 266. 4 Moss v. Smith, 9 C. B. 108.
> Usher vo. Noble, 12 East, 646; 5 Flint 0. Flemyng, 1B. & Ad. 45.
Waldron v. Coombe, 3 Taunt. 162. *Hare v. Travis, 7 B. & CO. 14;

Knight o. Faith, 15 Q. B. 649.
Marine InsuRANor. A467

Sec. 464. Charges incurred for the preservation of the vessel.

It seems by no means settled whether payments and charges in-
curred for the preservation of the vessel, cargo, and freight, are
recoverable as average loss, or under the clause for “ suing, laboring,
and traveling.”? Such expenses can be *recovered, though _, 390
incurred before a total loss arising from a cause for which / ]
the insurers are not liable”;* and though they make the total
amount greater than the subscription of the underwriter.” We have
seen that two-thirds only of those incurred in repairing the vessel
can under certain circumstances be set up." The charge for provis-
ions and wages, where a ship is detained by an embargo, fall upon
the owner, and are borne by the freight; ° these, therefore, are not
recoverable from the insurer of the ship,* unless it has-been aban-
doned to him, and then as he stands in the place of the owner, he
must bear them.’

Sec. 465. Liability of insurers to reimburse a general average loss.

A claim against the insurers may also arise out of any contribu-
tion, which the insured has been forced to make, in respect of an
average loss. They are not bound, however, to reimburse to him
the full amount of his contribution, but only that proportion of it
which the value of his interest as insured bears to its value as esti-
mated for the purposes of contribution ; or, to put the same thing in
another way, the owner of the goods (as one of the parties to the
contribution) has to pay in contribution (suppose) 10 per cent on
their contributory value ; but the underwriter has only to pay to the
owner of the goods (as his assured) 10 per cent on their value in the
policy. Therefore, if the contributory value of the goods be 1,5002.,
and they are only insured for 5002., the owner will have to pay
1502. contribution, but he can only recover 50/. of this from the
insurer.”

1 Livie v. Janson, 12 East, 648; Le 3 Le Cheminant v. Pearson, 4 Taunt.
Cheminant v. Pearson, 4 Taunt. 380; 367.
Stewart o. Steele, 5 Sco. N. R. 927, 4 Ante, p. 451.
in which the latter opinion seems * Da Costa v. Newnham, 2 T. R.
rather to prevail; Da Costa x. Newn- 414.
ham, 2 T. R. 407, in favor of the 6 Robertson v. Ewer, 1 T. R. 127.
former. 7 Thompson v. Rowcroft, 4 Hast, 34,
* Livie v. Janson, 12 East, 648, *2 Arnould on Ins. 950; 817, 4th
ed, .
468 GENERAL AVERAGE.

Sec. 466. How far bound by foreign adjustment.

Where the adjustment of the average loss has been settled in a
foreign port, on principles different from those which would have
been acted upon in England, the underwriter is bound by such ad-
justment, when rightly settled according to the laws and usages of
the place where it is made, and could have been enforced.’ But in
the absence of clear proof *that the usage of the country is [#301]
such, the underwriter is not bound, unless the loss would be
an average one in the country where the policy is made; and the
mere recital of the law on the face of the foreign decree, assuming
the supposed usage as its foundation, is not proof enough.”

As to interest under stat. 3 & 4 Wm. IV, ch. 42, see ante, tit. In-
terest. Independently of this statute, interest cannot be recovered
as a matter of right.’

Sec. 467. General averages.

It now remains to give a brief sketch of the doctrine of general
average, so far as it is connected with the question of damages.

A general average loss is defined to be a loss arising out of ex-
traordinary sacrifices voluntarily made, or extraordinary expenses
necessarily incurred, for the joint benefit of ship and cargo. Where
such a loss has taken place in a sea adventure, all the parties engaged
in it are bound to make good the loss incurred by one or more of
their co-adventurers, by reason of such sacrifice or expense.*

It does not come within the scope of this work to examine the
cases in which this claim arises, nor to inquire when the loss may be
subject of contribution, and when it must be borne by. the ship

1 Walpole v. Ewer, Park on Ins. 898,
8th ed.; Newman ». Cazalet, id. 900,
8th ed.; Harris v. Scaramanga, L. R.,
7 C. P.481;41 L. J.C. P.170. See
the American cases, 2 Phill. 165.. And
the same rule was adopted where the
insured had contracted to be bound
by the practice of British average ad-
justers, although such practice was
in fact erroneous. Stewart v. West
India and Pacific Steamship Co., L.
R., 8 Q. B. 88; 42 L. J. Q. B. 84;
affirmed, L. R., 8 Q. B. 362; 42 L. J.
Q. B. 191.

2 Power v. Whitmore, 4 M. & 8.
141; 2 Arn, 946; 814, 4th ed.

8 Ante, p. 282.
on Kingston ». M‘Intosh, 1 Camp.

5 Arn. 877; 794, 4th ed. As to
what operations are for joint benefit
of ship and cargo, see Job v, Langton,
6 E. & B. 779; 26 L. J. Q. B97;
Moran v. Jones, 7 EB. & B. 528; 26 L.J.Q.
B. 187; Kemp v. Halliday, 6 B. & 8.
728: L. R, 1 QB. 520; 35 L. J. Q.
B. 156; Walthew 2. Mavrojani, L. R.,
5 Ex. 116; 39 L. J. Ex. 81, in Ex.
Ch.; Harrison », Bank of Australasia,
L. R., 7 Ex. 39; 41 L. J. Ex. 36; Rob-
inson 2. Price, 2 Q. B. D. 91, 295; 46
L, J. Q. B. 22, 551.
GENERAL AVERAGE. 469

owner. These questions fall strictly within the law of shipping and
insurance, and will be found amply discussed in every treatise upon
the point, supposing, however, a claim for general average contribu-
tion to be established, it will then be necessary, with a view to dam-
ages, to ascertain, first, what is the fund from which contribution
is to be made; second, what are the principles upon which that
*contribution is to be calculated. These two heads will estab- [#309]
lish the amount of contribution to which the party suffering
is entitled.

Sec. 468. Sources of contribution.

The ship and freight always contribute.! And all goods carried
for traffic, whether they pay freight or not, and whether they belong
to merchants, passengers, owners, or masters.” And such goods pay
according to value, not weight; for the contribution is made not on
account of the incumbrance to the ship, but of the safety obtained.
Therefore, in this country, bullion and jewels contribute according
to their full value.” But gold or silver, jewels, precious stones, or
other articles of value, do not contribute when carried about the
person, or forming part of the wearing apparel, nor does the lug-
gage of passengers.’ Deck goods contribute though they are in
general not contributed for. Provisions and war-like stores do not
contribute,’ although if cast overboard their amount is refunded.
The reason of this is stated to be, that these articles themselves are
the means of preserving and benefiting the whole. But this reason
might with equal propriety be applied to all the ship’s furniture.
The true reason appears to be, that provisions, being destined to be
consumed during the voyage, belong to wear and tear. The excep-
tion, however, only extends to what is meant to be used during the
passage, and not to such provisions as may be shipped on freight.’
Goods carried by mariners on their own account contribute, unless
perhaps when the permission of carrying a certain quantity is
granted to them in lieu of wages.°

1 Abbott’s Ship., 8th ed., 503; 549, 5 Stevens, 210; (Am. ed. Phill.)

11th ed. Arn, 919; 792, 4th ed.
2 Abbott's Ship. 502; 549, 11thed.; 6 Brown v. Stapyleton, 4 Bing. 119.
Brown »v. Stapyleton, 4 Bing. 119. ™ Benecke, 307.

3 Abb. ubi sup.; 1 Magens, 62,63.  ® Benecke, 308.
4Am. 919; 792, 4th ed. ; Abb.
503; 549, 11th ed.
470 GENERAL AVERAGE.

Maritiery do not contribute for their wages, except in the single
instance of the ransom of the ship. In that case they are required
[#398 93] contribute, in order to encourage resistance.! *Ransom

is now prohibited by statute,’ but only in the caseof enemies.
It is still lawful when the vessel has fallen into the hands of pirates
or other plunderers.*

Sec. 469. Things sacrificed contribute.

That which has been sacrificed contributes, in general average,
equally with that which has been saved. Otherwise the owner, re-
ceiving their total value, would suffer no loss by the sacrifice, while
the other owners would. Not only goods jettisoned, but those
which have been sold for the benefit of ship and cargo, contribute,
for they are equally contributed for; and the same is the rule as to
the freight, which would have been payable in respect of them; for
it is also contributed for, and must therefore take its share in the
entire loss.*

Sec. 470. Only property exposed to risk contributes.

Nothing of course contributes which has not been exposed to the
risk ; because if it was never placed in jeopardy, it was not saved by
the loss, and cannot be liable to make it good. Therefore, neither
goods landed, nor sold for the necessities of the ship before jettison,
nor those taken on board afterward, contribute.© Nor do goods
which have been jettisoned themselves contribute for any subse-
quent disaster, nor does the owner of goods jettisoned, who recov-
ers them after a second jettison, contribute toward such subsequent
loss."

Sec. 471. Freight when contributory.

Freight, in order to be contributory to all, must have been pend-
ing at the time of the sacrifice. If the cargo, or part of it, has been
delivered before the average loss, the freight due in respect of it

1 Abb. 594; 550, 11th ed. ; Benecke, ‘Arn. 918; 792, 4th ed.; Stevens’
308. Av. 61, 6th ed. ; Abb. 505; 552, 1ith
222 G. III, ch. 25; 48 G. IM, ch. ed.
160, $§ 34, 35; 45 G. III, ch. 72, §§ Arn. 917; 791, 4th ed.
16, 17. ® Arn, 918; Benecke, 182. But see
3 Arn, 916; 790, 4th ed. Arn. 917, 4th’ ed., where the modern
practice i is stated to be different.
471

does not contribute, nor does freight paid in advance.' Where a
ship was chartered for an entire voyage out and home, under a stip-
ulation that no freight was to be paid for the home voyage, unless
both were performed safely, *and a general average loss oc- [#304]
curred on the out voyage, it was held that the freight home

should contribute, on the ground that it was one entire sum.? But
this decision has been doubted by Benecké,* who thinks that the
freight ought to have been apportioned with a view to contribution,
and that each voyage should bear its own loss.‘

GrnErRAL AVERAGE.

Sec. 472. Valuation of loss of goods. Deduction for probable injury.

The principles upon which the contribution is to be made must
depend upon two points: First, the mode of estimating the loss
incurred; secondly, that of estimating the value of the property
saved.

1. As to goods; this will depend upon the place where the ad-
justment is effected. If at the port of starting, the value will be
the price of the goods, increased by the shipping charges and insur-
ance, if the goods cannot be replaced.* If they can be replaced,
their cost price and charges without insurance, which will be saved.°
Where the adjustment takes place at an intermediate port, or at the
port of destination, they are taken at the net value they would have
sold for there, deducting freight, duty, and landing expenses.” If,
however, the rest of the goods saved have been damaged by the
same accident as that which caused the jettison, or by a subsequent
disaster, it may be presumed that, if the goods cast away had re-
mained on board, they would have met a similar fate. Their value
must be estimated, as if they had arrived at the port of adjustment
in a state of as great damage as the rest of the cargo.° And if

1 Arn. 937; 808, 4th ed.; Benecké,

314. Butif it is not to be recovered
back by the shipper in any case, it

5 Benecké, 289; Arn. 929; 801,
4th ed.; Tudor v. Macomber, 4 Pick.
34; 2 Phill. 181. Pre-paid freight

contributes in the hand of the shipper
either directly as an interest in freight,
or indirectly in the enhanced value of
his goods at risk; Frayes 7 Worms,
19 C. B. (N. S.) 159; 384 L. J.C. P.
274; Arn. 808; 4th ed.

? Williams v. London Assurance Co.,
1M. &S. 318.

3P. 315,

4 See 2 Phill. 142, as to cases where
a ship is chartered for successive
ports.

must be also added if the goods would
have been carried on; Fletcher »,
Alexander, L. R., 3 ©. P. 385,
387; 37 L. J.C. P. 200, 202; Frayes
». Worms, supra.

6 Benecké, 288.

7 Arn, 929; 801, 810, 4th ed.; Ben-
ecké, 288, 289.

§ Benecké, 290; Arn. 930; 801, 4th
ed. This question was considered in
a recent case, in which half of a cargo
of salt on board of a ship which sailed
472 Grnzrat AVERAGE

liable to leakage, or *breakage, a similar deduction ought to
be made on that account.! If the goods jettisoned are recov-
ered before adjustment, the loss is estimated by adding the amount
of damage they have sustained to the expenses of recovering them.’

[*325]

Sec. 473. Jewels, etc. Freight.

Where jewels or other articles of great value are designated in the
bills of lading as of inferior value, they are allowed for all the
value stated. But articles of this nature in passengers’ trunks are
allowed for at their real value, because no bills of lading are signed

Deck goods.

for such goods.

As a general rule, goods taken on deck are not contributed for if

lost.*

But where an established usage to carry goods in this manner

is proved, they may be contributed for; as for instance timber, or
pigs carried between Waterford and London.*
The amount payable for freight of goods jettisoned is calculated

at the gross amount they would have earned if saved.°

But if part

of the goods saved by the jettison is afterward lost, it must be pre-
sumed that a similar portion of those cast away would have been
lost also, and freight can only be allowed on the residue.’

from Liverpool to Calcutta was jetti-
soned on the Irish coast, and the other
half brought back to Liverpool so
damaged as to be almost worthless.
The conclusion to be drawn from the
discussion would seem to be that there
is no rule or presumption of law re-
specting the condition in which the
goods jettisoned would have arrived
if they had not been thrown over-
board ; but regard must be had to all
the probabilities of the case, the na-
ture of the goods, and the mode in
which they were packed. And that
if, under the circumstances of that
case, the average stater came to the

12 Phill. 181.

2 Arn. 930; 802, 4th ed.; 2 Phill.
184.

* Benecké, 294.

Ross v. Thwaite; Backhouse 2.
Ripley, Park on Ins. 28, 24; Miller o.
Tetherington, 6H, & N. 278; 30 L.J.
Ex. 217; affirmed, 7H. & N. 954; 31
L. J. Ex. 363. :

5 Gould v. Oliver, 4 B. N. C. 134;
Milward v. Hibbert, 3 Q. B. 120. In

proper conclusion that they would
have arrived at Liverpool in a sound
state, so that they might have been
carried on, the value would be the
cost price, with the shipping charges,
premium, and pre-paid freight. If,
on the contrary, he came to the con-
clusion that they would have arrived
so damaged as not to be worth carry-
ing on, or the ship was so damaged
that she could not be repaired so as
to carry on the adventure, the value
of the goods in their damaged condi-
tion must be taken without freight or
charges, Fletcher v. Alexander, L.
R.,3C. P. 375; 387 L. J. C. P. 198.

the United States this exception in
favor of established usage is not al-
lowed. Arn. 767, 4th ed., citing
Cram v. Aiken, 18 Me. (1 Shepley)
229; Lenox ». United Insurance Co.,
3 Johns. (N. Y.) 178, 179; Smith v.
Wright, 1 Caines, 43; Dodge v. Bar-
tol, 5 Greenl. 286.

® Arn. 981; 802, 4th ed.

7 Benecké, 291,
GENERAL AVERAGE. 473

Sec. 474. Ship. When totally lost.

Damages done to the ship in such a manner as to form a general
average loss may amount to a partial injury, or a total destruction.
In the former case, the measure of indemnity is *the cost of [#396]
repair, deducting one-third new for old.’ In the latter case,
it was, however, contended that no contribution at all should take
place. It was argued that where destruction of the vessel, by run-
ning her aground, became absolutely necessary, it was no
longer such a voluntary act as would constitute an average loss.
That ifit were not absolutely necessary, it was merely a gratuitous
damage. The contrary doctrine, however, has been established in
America, on the ground that such an act,‘though morally speaking
necessary, involves a sufficient exercise of choice and volition to
render it voluntary ; and that the owner ought not to be deprived of
all recompense, because a greater loss has happened than was per-
haps anticipated.” The measure of adjustment in this case is the
value the ship would have been to the owner, if he could have had
her in security at the moment of the loss, and the gross freight
which she would have earned.*

Sec. 475. Where goods have been sold.

When goods are sold to raise money for the repairs of the ship, the
loss in general falls wholly on the ship-owner, and is not the subject
of contribution ; for the owner of the ship undertakes to have the ship
fit to perform the voyage, and any expense incurred for this purpose
must be borne by him.* The contrary, however, will be the case where
they have been sold to effect repairs, which arise out of what was itself
a general average loss. In such a case they must be contributed for
according to the price they would have fetched at the port of desti-
nation, subtracting freight, duty and landing expenses.” The same
questions as to the different mode of valuation arise in this case, as
in that of goods sold by the master, for which the ship-owner alone
is answerable;° and the same solution seems to be applicable. Mr.

1 Benecké, 294; Abb. 504; 551, 11th affirmed 3 id. 644; Hallett . Wi-

ed. gram, 9 C. B. 580; Atkinson ». Steph-
2 Columbia Insurance Co. ». Ashby, ens, 7 Ex. 567. .

13 Pet. 381; 3 Kent’s Com. 239. 5 Arn. 931; 808, 4th ed.; 2 Phill.
3Id.: Arn. 831; 803, 4th ed. 129: Benecké, 274.

4 Powell o. Gudgeon, 5 M.&8.481,  & Ante, p, 402; 2 Phill. 129.
487; Duncan v. Benson, 1 Ex. 537;

60
AT4 GrnrraL AVERAGE.

Arnould has no doubt that goods sold in this manner ought to be
[#397] paid for, *whether the ship arrives in safety or not; and

distinguishes the case from that of jettison, on the ground
that a debt is contracted by the sale, which is unaffected by the re-
sult of the adventure to which the money was applied.’

Where money is raised for the general safety, and not merely to
enable the ship-owner to carry out his own contract, it must also be
replaced by general contribution ; with all attendant expenses, such
as charges incurred in drawing, interest whether ordinary or marine,
and loss in the exchange.’

Sec. 476. Mode of valuing the property saved.

The broad principle upon which the property saved is estimated
is, that the value of the property to its owners, as saved by the
sacrifice or the expenditure, is the value upon which it ought to con-
tribute toward making good the loss.* As the adjustment is gene-
rally made at the port of discharge, this is, in most cases, their net
value in the state in which they come into their owner’s hands at the
port of destination.‘

Sec. 477. In thecase of the ship.

When the ship is sold, the price of course determines her value.*
If not, her value is ascertained by taking her value at starting, and
subtracting from it, 1st. The provisions and stores expended; 2d.
Any partial loss she has sustained up to the time of adjustment;
3d. Natural wear and tear of the voyage, unless made good by the
repair of a particular damage ;’ 4th. Perhaps any subsequent gen-
eral average losses to which she has had to contribute.° To this re-
sult, however, must be added again the amount paid to the ship as

1 Arn. 924; 798, 4th ed.; Powell v.
Gudgeon, 5M. & 8. 431. ‘The re-
sult, therefore, of the authorities ap-
pears to be: 1. That where goods

2 Arn, 932; 804, 4th ed.; Benecké,
250

3 Arm, 982; 804, 4th ed.
4 Arn. 983; 805, 4th ed.

are sold to defray the necessary re-
pairs of the ship, they are paid for
though the whole adventure may be
finally lost. 2. That where they are
sold for general average purposes,
they are not to be contributed for un-
less something is saved;” Arn. 942,
2ded. Seep. 798, 4th ed.

5 Arn. 934, n.k.; 813, n. 4, 8d ed.;
Bell ». Smith, 2 Johns. 98. As to
ships of exceptional character, see
ante, p. 457, n. 4.

6 Arn, 935; 806, 4th ed.

" Benecké, 312.

Pic 936, n. 0; 807, n. 3, 4th
ed.
GenEerRAL AVERAGE. 475

contribution on account of general average loss to *herself.'
The sum so found will be the value at which she is to con-
tribute.

[*328]

Sec. 478. Goods.

Goods contribute on their actual net value, that is, on their mar-
ket price at the port of adjustment, free of all charges for freight,
duty and landing expenses.” When part of the goods are sold for
money with a discount, and part on credit, by which a higher price
is obtained, the usual discount and guarantee must also be deducted
from the latter portion of their price. No deduction, however, is
to be made for insurance premium, because it forms part of the
prime cost, and its payment does not depend upon the future fate of
the goods ; nor for commission, because all parties are to be treated
alike, whether the goods go into the hands of their proprietors, or
of a commission agent.’

Sec. 479. Freight.

The ship-owner saves, by the measure taken for the general benefit,
so much of the freight as he finally receives from it; deducting
that part of the wages which remained unpaid at the time of the
accident, and deducting also those port and other charges which he
would not have paid if the vessel had been lost. This is conse-
quently the amount for which the freight ought to contribute.
Wages paid in advance ought not to be deducted; for these advances
cannot be considered as diminishing the freight saved, with which
they stand in no connection whatever.* No contribution is due from
freight, when, owing to the length of the voyage or other causes, it
is entirely consumed by the wages, for its contributory value is only
its excess over wages. On the same principle, when a ship is dis-
abled and a cargo sent home in a second, the excess of freight for
the entire voyage over that paid to the substituted ship, alone forms
the contributory value of freight.”

Sec. 480. Example of adjustment.
The application of these principles will be best shown by an
example of an adjustment, borrowed from Arnould on Insurance:

1 Arn. 936; 807, 4th ed.; Benecké, 4 Beneck , 313.

1. 5 Arn. 939; 809, 4th ed.; Searle »,
Arn. 940; 810, 4th ed. Scovell, 4 Johns. Ch. 218.

3 Benecké, 301.

31
476 GENERAL

(*829] *VALUATION OF LOSSES.

Goods of A jettisoned.........
Damage to goods of B by the

JettiSOlsiacc .cas vs oe ee eee dee 200
Freight of A’s goods jettisoned. 100
Price of new cable, anchor and

MAsticsssasrss ceatans £300
Deduct + new for old.... 100

-— 200
Expense of bringing ship off the
sands .’

Pilotage, and expenses of going

50

into and out of port to refit... 100
Expenses there............+665 25
Adjusting average............ 4
PoOstaPe: sink d vases anses os ace 1
Total amount of losses to be con-

tributed for............... £1,180

Hence each person contributes

AVERAGE.

VALUE OF ARTICLES TO CONTRIBUTE.

Goods of A jettisoned.........

Net value of goods of B deduct-
ing freight and charges

Ditto of goods of C ..........
oe «6 D

4c co

Biogas webees 5,000
Value of ship, deducting wear
and tear, amount of particular
average loss, stores and pro-
VISIONS .....2 c000 senes conn e os
Clear freight, deducting wages.

 

Total contributory value.... £11,800

10 per cent of the value of his

property, and receives the amount of loss he has suffered.

The ship-owners contribute..............eee eens £280
Are to be paid...... cc cece eee ne conn eeeeee 480
Actually receive ............cseecesceee wens £200
A contributess wise sss scwss wacw sean Ca smls aisle es 50
Ts to be paid... 1... ccc s cca ceceeeeecerers 500
Actually reC@lves i joes eccce ey ele cease a eee 450
Bcontributes’: .¢3::20c08 vwwrinds seanawsoaiaaw's & oeoe 100
T8t6 D6 Pala: crc. cicsieie i canner sie eeredanalins 200
Actually receives ........ sce e see e eee eee ees 100
£750
Cc : 50
D. reste nothing and contribute severally.......... 200
E. 500 £750

This amount equals the amount to be actually received, and must
be paid to the persons entitled in ratable proportions.
The foregoing observations upon Marine Insurance and Average

present only a very meagre sketch
of those branches.

of the law of damages arising out

The whole subject, however, has been so ex-

haustively treated in various well-known books, that I thought it

unnecessary to go to any greater length. The reader can easily fill
up the outline from the sources indicated.
EsecrmMeEnt. AUT

*CHAPTER XIX. [*330]

EJECTMENT.

Seo. 481. Changes in the character of ejectment,
482. Writ of dower.
483. Demand necessary.
484. Amount of damages.
485. Time to which they are assessed.
486. Effect of death of heir; or widow.
487. Quare impedit.
488. Where bishop has not collated.
489. Where bishop has collated.
490. Damages against every disturber.
491. ‘*Six months; ” how construed.
492. Equitable application of statute.
493. Where no actual loss.
494. When two years value may be recovered,
495. Action of account.

Sec. 481. Changes in the character of ejectment.

1. The action of ejectment has undergone curious revolutions since
its birth. Originally, the lessee of land had no remedy when
ejected, except on the covenant made with him by his landlord. In
no case could he regain possession of the land. Then the writ of
quare ejecit was invented, by means of which he could recover the
term, if ousted by his landlord, or any one claiming under him. It
did not extend to strangers, however. Later, still, the writ of e¢ec-
tione firme was devised, which enabled him to sue any ejector for
damages, but he could not be replaced in possession of the soil by
means of it. Finally, it became settled, apparently about the time
of Henry VII,' that restitution of the land could be enforced in
this manner. The action of ejectment, while retaining its form as
a personal action, became, thenceforward, substantially, a real action.
The recovery of the soil alone was sought for, and only nominal
damages were given.” By the Common-Law Procedure Act, 1852,
it lost even the disguise of an action of trespass, and became avow-

1 Fitz. N. B. 505; 198, 220, 9th ed. 3 See Adams’ Hject. 1-7.
478 Warr or Dowzr Unnt Niam Haser.

edly a mere issue to try the right to the soil. The judgment was to
recover possession of the land, without any mention of damages.’

This constituted *it strictly a real action. In one case, how-
[*331] : ‘ ; a at

ever, it became a mixed action, from the possibility of re-
covering damages. This occurred in ejectnfent by landlord against
tenant, it being enacted, that whenever it should appear at the trial
that the tenant or his attorney had been served with due notice of
trial, the claimant might be permitted, after his right was estab-
lished, to give evidence of the mesne profits from the expiration of
the tenant’s interest down to the time of verdict, or some time pre-
ceding to be specially mentioned.* As to damages in respect of
mesne profits see post, Ch. 14.

Now, under the rules and orders in force under the Supreme
Court Judicature Act, 1875, actions for the recovery of land are
commenced by the same writs as other actions ;° and claims may be
added in respect of mesne profits or arrears of rent in respect of the
premises claimed, orany part thereof, and damages for breach of any
contract under which the premises, or any part thereof, are held.
No other cause of action can, however, be joined unless by leave of
the court or a judge.*

Sec. 482. Writ of dower.

Both the writ of right of dower and of dower unde nihil habet
were preserved by 3 & 4 W.IV, ch. 27, § 36. The Common Law
Procedure Act, 1860, § 26, substituted for them actions commenced
by writs of summons, issuing out of the court of common pleas in
the same manner and form as in ordinary actions, but indorsed with
notice of the plaintiff's intention to declare in dower. By section 25,
the proceedings were assimilated to those in ordinary actions.’ Now
the writs should be indorsed with the statement that the claim is for
dower,® and the actions should be assigned to the common plea divis-

¢

1 Sched, A. 18-17.

215 &16 Vict., ch. 76, § 214; and
they might be recovered, though no
notice was taken of them in the writ
or issue; Smith v. Tett, 9 Ex. 307.

3 Ord. 2, R. 3.

4 Ord. 17,R. 2. An action to establish

title to land is an action for the recov- -

ery of land within this rule, Whet-
stone v. Dewis, 1 Ch. D. 99; 45 L. J.

Ch. 49. See, also, Cook ». Enchmarch,
2Ch. D. 111; 45 L. J. Ch. 504.

5 For a case of dower since this Act
see Woodward ». Dowse, 10 OC. B.
(N. 8.) 722; 811. J.C. P. 70. See,
also, for so much of the old law as is
applicable to its altered state, William
v. Gwyn, 2 Wms. Notes to Saund. 72.

* Orders and Rules, Appendix A,
part 2, § 4.
Wrrr or Dower Unpe Ninit Haser. 479

ion.’ In a case in which before these acts the *writ of right
of dower would have been resorted to, no damages can be
recovered.” In a case in which the writ of dower wnde nihil habet
would have been employed, they are given by the statute of
- Merton, 20 Hen. III, ch. 1, by which it is enacted, “That if
widows, after the death of their husbands, are deforced of their
dowers and cannot have their dowers without plea, they
that be convicted of such deforcement shall yield damages
to the same widows, that is to say, the value of the whole dower
to them belonging, from the time of the death of their hus-
bands unto the day that the said widows by judgment of our court
have recovered seizin of their dowers.”

[#332]

Sec. 483. Demand necessary.

This statute does not apply where the wife has dower assigned to
her in chancery, for the words of the statute are, “et viduw per
placitum recuperaverint.” And, for the same reason, the widow
must make ademand of her dower, for otherwise the heir may plead
that he has-been always ready, and yet is, to render dower, and the
demandant will lose the mean valueand damages.‘ But where the
heir pleads towt temps prist with success, the demandant shall re-
cover damages from the teste of the original to the execution of the
writ of inquiry.* Buta demand is only necessary where this plea
can be set up; and whereit is not pleaded, damages are recovered
from the death of the husband, and not from the time of suing out
the writ."

Sec. 484. Amount of damages.

The wife shall only recover damages when her husband died
seized, that is seized of the freehold and inheritance.” And this
must be expressly so alleged.* But where the husband has made
a lease for years reserving rent, the wife shall recover the third
part of the reversion with the third part of the rent and dam-
ages. And damages in such a case are according to the value,
not of the land, but of the rent.!° Hence, if the rent was only

1 Sup. Ct. of Jud. Act, 1873, § 34. Hardw. 19; Kent v. Kent, 2 Barn. B.

? 1 Inst. 32, b. R. 357

3 1 Inst. 38, b. 71 Inst. 82, b.

“1 Inst. 32,4 ~ 8 Jones v. Jones, 20. & J. 601.
° Park, Dower, 803. 91 Inst. 82, b.

® Dobson v. Dobson, Ca. temp. 10 Hargr. Co. Litt. 82 b, n. 5.
480 Writ or Dower Unve Nis Haset.

a nominal one, only nominal *damages can be obtained.
Accordingly, where a testator devised that his executors
should pay debts and legacies out of the rents and profits of his
real estate, and when the debts and legacies were paid, devised it to
his son, who died before the debts were paid, and before he had
possession, the son’s widow recovered her dower and damages. It
was held that she could not count the value of the estate from her
husband’s death, but from the time the debts were paid, and the
trusts performed.'. And in another case, where the jury had as-
sessed damages to the amount of the entire value of the land from
the death of the husband, the inquisition was set aside, the court
being of opinion that a deduction ought to be made for land-tax, re-
pairs and chief rents.’

[#333]

Sec. 485. Time to which they are assessed.

In the same case, the court decided that damages ought not to be
given to the day of the inquisition, but only to the day of awarding the
writ of inquiry? This opinion, however, has since been overruled,
and it is now settled that damages may-be given up to the time of
the inguisition, where the widow has not yet obtained possession, or
up to such latter time where she has.*

Sec. 486. Effect of death of heir, Or widow.

Where the heir dies after judgment against him, and before as-
sessment of damages, the widow cannot havea scire facias to re-
cover these damages against his heir, or the alienee, if the land has
been sold; because the statute gives damages against. deforciatores,
that is, expellers by force, and neither the alienee nor the heir of
the heir is in that case.° And so in the converse case, when the
widow dies after judgment, and before execution of the writ of
inquiry, the executor cannot recover damages. If they had been
ascertained upon the writ of inquiry, and judgment thereupon in her
life-time, they had then vested in the demandant as a debt, and the
executor should have had them; but she dying before the final
judgment, and when the damages were due to her only by way of

‘Hitchens ». Hitchens, 2 Vern. ‘4Thynne v, Thynne, Hargr. Co.

404, Litt. 32 b. n. 4; Walker ». Nevil, 1
Penrice ». Penrice, Barnes’ C. P. Leon. 56; Jones. v. Jones, 2 C. & J.
234, 601,

3 Penrice » Penrice, ubi sup. ® Aleworth v. Roberts, 1 Lev. 38.
Quare Impeprr. 481

satisfaction for an injury, which is in the nature of a *tres-
pass, and the writ of inquiry being in the nature of a per-
sonal action for them, it dies with the person.’

No arrears of dower, nor any damages on account of such arrears,
shall be recoverable for more than six years.’

[#334]

Sec. 487. Quare impedit.

Proceedings in guare impedit are now commenced by writ of
summons in the ordinary form indorsed with notice that the plain-
tiff’s claim is in guare wmpedit, and are subject to the rules and
practice of ordinary actions.” Previous to the statute 2 Westm. II,
ch. 5,‘ the plaintiff ina guare impedit recovered no damages, lest
any profit the patron should take should savor of simony ; and this
is the cause that the king in a guare impedit recovers no damages,
because he is not within the purview of this act.”

The above statute enacts, “that from henceforth in writs of guare
impedit damages shall be awarded, to wit, if thetime of six months
shall pass by the disturbance of any person, so that the bishop do
collate to the church, and the true patron lose his presentation for
that time, damages shall be awarded to two years’ value of the
church; and if the time of six months shall not pass, but the pre-
sentment be deraigned within the said time, then damages shall be
awarded to half a year’s value of the church.”

The value of the church, in computing damages in an action of
quare impedit, is always to be estimated at what the church might
have been let for.’ :

Sec. 488. Where bishop has not collated.

If six months have passed since the church became void, and the
bishop have not collated, the plaintiff in an action of guare impedit
has an election to pay a writ to the bishop; in which case, as he
Goes not lose his presentation for that time, he can only recover
damages to the amount of half a year’s value of the church; or as
the right of collating has accrued to the bishop, he may proceed in

1 Mordant v. Thorold, 3 Lev. 275; should be assigned to the common
1 Salk. 252,85. C. pleas division, Sup. Ct. of Jud. Act,
23 & 4 W. IV, ch. 27, 8 41. 1873, § 34.
3C. L. P. Act, 1860; 23 & 24 Vict., 413 Edw. I, ch. 5, § 3.
ch. 60, §§ 26, 27. Orders and rules, 5 2 Inst. 362.
Appendix A, part 2,§4. Theactions  ° 2 Inst. 363.

61
482 Quare Impenirt.

the action, in order to recover *damages to the amount of
two years’ value of the church; but if he elect to do the
latter he loses his presentation for that time.’

[*335]

Sec, 489. Where bishop has collated.

If six months have passed since the church became void, and the
bishop have collated, yet if the incumbent be afterward removed, in
consequence of a judgment in an action of guare impedit, damages
can only be recovered to the amount of a half year’s value of the
church, because the plaintiff does not in this case lose his presenta-
tion for that time.? And where the plaintiff’s clerk had been ad-
mitted and inducted, and remained in possession for more than half
a year, until he was turned out by a writ of restitution, the court
refused to give full damages.’

Sec. 490. Damages against every disturber.

Damages are recoverable in an action of guare umpedit against
every disturber of the patron in his right of presenting ; * therefore
in quare impedit against the patron and incumbent, where the
plaintiff has recovered the advowson after the lapse of six months,
if the incumbent has counter-pleaded the title of the plaintiff, the
two years’ value may be recovered against him as well as against
the patron.°

Sec. 491. “Six months,” how construed.

The words “six months” in the above statute are to be under-
stood to be six calendar months, being clearly equivalent to the half
year spoken of in the same clause.” When judgment was given
within six*months, but, before the writ could be served upon the
bishop, that period had expired, upon which he collated by lapse,
it was held that only damages for the half year could be recovered.”

Sec. 492, Equitable application of statute.

But where upon the foundation of a chauntry the composition
was, that if the patron present not within a month the ordinary

'Id.; Bishop of Exon v. Freake, 42 Inst. 363. -

1 Lutw. 901; Holt o. Holland, 3 Lev. 5 2 Inst. 368.

59, contra. ® Tullet ». Linfield, 8 Burr. 1455.
2 2 Inst. 363. 72 Inst. 368.
3 Earl of Pembroke v. Bostock, Cro.

Car, 174,
Quarr Imrenrt. 483

shall collate ; in a guare impedit, brought for this chauntry, if the
month be past, the plaintiff shall recover damages for two years
within the equity of the statute, because *the patron in such [#336]
a case loses the presentation, though six months have not
elapsed."

Sec. 493. Where no actual loss.

When the plaintiff recovered in guare impedit, and there was no
other disturbance but the presentation of the king who had revoked
it, and no disturbance by the incumbent, the plaintiff was held not
entitled to damages.” But it was said by Newron, J., that a man
shall recover damages in guare impedit where he was never dis-
turbed ; and Asuton, J., laid it down, that if I present and my clerk
is inducted, and J. N. brings guare impedit against me for this,
and after is nonsuited, I shall have damages.°

Sec. 494. When two years’ value may be recovered.

When the plaintiff brought guare empedit against the bishop, and
also against J. T. of the same church, and the bishop confessed the
disturbance, and J. T. traversed the title of the plaintiff, which was
found for the plaintiff; the plaintiff claimed a writ to the bishop,
and two years’ value, the six months having expired. Tuorp, J.,
said, you cannot have the value of two years and writ to the bishop ;
and because the ordinary cannot have the lapse where he confesses
the disturbance, it was awarded that the plaintiff should have writ
to the bishop, and damages of half a year.*

Sec. 495, Action of account.

No damages are recoverable in an action of account, where the
defendant does not plead, but submits to have the account taken,’
for the plaintiff virtually obtains damages to the extent of the sum
found by the auditors to be in arrear, when the account is taken
before them.* But where the defendant has pleaded to the issue,
which is found against him, as for instance, where he denied having

12 Inst. 362. the three last cases cited in 17 Vin.

° Br. Dam. pl. 171. Abr. 465-467, ed. 1743.

3 Br. Quare Impedit, pl. 83; citing  *Br. Dam. pl. 136, 166; 1 Roll.
22H. VI, 25. Abr. 575, pl. 17, 18, 29.

4 Br. Quare Impedit, pl. 108. See 6 Fitz. Dam. pl. 19; Collet’s Case, 3
Leon. 230.
484 Action or Acoount.

been the plaintiff's receiver, damages may be given against him on
account of the delay ;* and accordingly it has been said to be clear
law, that in an account a man shall recover damages on the second
[#387] judgment.’ But where a receiver was ordered to *account,

and willfully lay in prison for two or three years, this was
held not to entitle the plaintiff to recover any thing for profits dur-
ing the time he so lay.*

There are contradictory decisions as to whether a receiver, who has
received goods to trade with, can be rendered liable for the profits
which he might have made, but did not.‘ On principle, however, it
seems that such a source of damage would be too speculative and
remote to be allowed for.

Now that the taking of accounts is specially assigned to the chan-
cery division of the high court of justice,® the old common-law
action of account is practically, if not absolutely, obsolete.

14 Roll. Abr. 575, pl. 30; Brown 0. 4 Collet’s Case, 3 Leon. 230; 1 Roll.
Barwick, Noy, 184, Abr. 575, pl. 27, 28.

® March. 99, pl. 171. 5 Sup. Court of Jud. Act, 1873, § 34,

71 Roll Abr. 576, pl. 381. Ord. 3, Rule 8; Ord. 15, Rule 1.
[*338]

Sec. 496.

497.

498.
499.
500.
501.
502.
5038.
504.
505.
506.
507.
508.
509.
510.
511.
512.
513.
514.
515.
516.

+ 517.
518.
519.
520.
521.
522.
523.
524.

525.
526.

527.
528.
529.
530.

,

TRoOVER. 485

*OHAPTER XX.

TROVER.
Torts.

Damages in trover are given for the conversion, Mode of calcu-
lating value where there has been a change in the price.

American rule.

Damages for conversion of bill of exchange.

Damages vary according as plaintiff was forced to sell or not.

Damages when article has changed its form.

Cases in which minerals have been severed.

Where goods deposited with defendant under void contract.

Presumption as to value in certain cases.

Value when sold.

Trover for title deeds.

Bills and notes.

Damages when security is void.

By the act of the defendant.

Damages by estoppel.

Interest.:

Special damage.

Action for seizure under the Customs Act.

Mitigation of damages. Want of title.

Johnson v. Stear.

Damages in action by bailee, etc. Damages in action against un-
paid vendor. ;

Cost of keep of an animal.

Reversioner.

Right of action against third parties,

Re-delivery of property.

Verdict by consent.

Reducing damages after verdict.

Staying proceedings.

Staying proceedings as tosome articles where the claim is for
several.

Damages for detention.

Property changed by recovery in trover and satisfaction. Buck-
land v. Johnson. Brinsmead v. Harrison.

Effect of a judgment for less than the full value of the goods.

Detinue.

When property cannot be returned.

When property vests in defendant.
486 TROVER.

Sec. 496. Torts.

We now pass from contracts and real actions to the wide region
of torts. Here we are at once struck by the fact that damages are
no longer an invariable matter of calculation, but in many cases are
committed almost entirely to the discretion of the jury. Even here,
however, as was remarked before (ante, p. 56), the jury are never
left wholly to their own caprice. They are always to keep certain
principles in view, while forming their estimate, and sometimes
these principles can be applied with such accuracy as to make their
verdict a mere matter of arithmetic.

Actions of tort comprise all injuries to property, person or char-
acter. The first class are always capable of strict valuation; the
second are so frequently, but not always; the third probably never.
It will be most convenient to adopt the old rule of method, and
proceed from that which is more certain to that which is less so ;
and as actions in respect of goods are more frequent than those in
respect of land, we shall begin with the former.

Sec, 497. Damages in trover are given for the conversion. Mode of calculat-
ing value where there has been a change in the price.

 

One of the most ordinary actions for the recovery of goods is

that of trover.

The gist of this action is the wrongful conversion

of the property to the defendant’s own use, and not as in trespass,
‘the original wrongful taking ;’ consequently the measure of dam-

1 Bac, Abr. Trover, A.

It is immaterial in an action of tro-
ver whether the property, in the first
instance, came into the hands of the
defendant wrongfully, or by the con-
sent of the owner, as, tf the defendant
retains the property without right, he is
liable therefor in this form of action,
as the wrong is predicated upon the
wrongful conversion, and not upon
the wrongful taking. There is, how-
ever, this important distinction, that,
where the taking is wrongful, no de-
mand is necessary before bringing an
action; Jones v. Dugan, 1 McCord
(8. C.), 428; Paige v. O'Neal, 12 Cal.
483; Farrington v. Payne, 15 Johns.
(N. Y.) 481; Woodbury v. Long, 8
Pick. (Mass.) 548; while, if the pos-
session was originally lawful, unless
there has been an actual conversion, a
demand must be made before an action

will lie. Chapin ». Siger, 4 McLean (U.
8.), 878; Brown v. Cook, 9 Johns, (N.
Y.) 361; Blakeley v. Ruddells, Hemps.
(U. 8. 0. C. Ark.) 18; Polk v. Allen,
19 Mo. 467. In order to maintain the
action there must be either a taking
without right; an assumption of own-
ership; an illegal use or abuse of the
property, or a demand for the property
and a refusal or neglect to deliver it;
Kennet »o. Robinson, 2 J. J. Marsh.
(Ky.) 84, and the plaintiff must show
aright to the possession of the prop-
erty at the time when the demand was
made, if a demand is necessary as pre-
liminary to bringing the action, or at
the time of bringing the action, if no
demand is required. Jones ». Sinclair,
2 N. H. 319; Clark v. Draper, 19 id.
419; Winship v. Neale, 10 Gray (Mass.),
382; Ames v. Palmer, 42 Me. 197;
Fairbank o. Phelps, 22 Pick. (Mass.)
TROVER.

ages is in general the value of the goods.

they were obtained is immaterial.

ascertaining the value, where it has *varied at different times
or where any circumstances prevent precise proof.

487

The manner in which
The only point of difficulty is in

[*339]

Where the article has fluctuated in price, it is by no means set-
tled in England whether it is to be estimated at its value at the

time of conversion, or at any later time.

The value of a bill of ex-

change, for instance, is perpetually changing according as interest

accumulates upon it.

535; Grady v. Newby, 6 Blackf. (Ind.)
442. It is not essential that he should
establish a title to the property in him-
self, as prior possession is good against
one who has no better title; Knapp v.
Winchester, 11 Vt. 351; Cook v. Pat-
terson, 35 Ala. 102; Coffin ». Ander-
son, 4 Blackf. (Ind.) 395; Carter v.
Bennett, 4 Fla. 283; and if, by any
means, he is entitled to the present
possession of the property, whether by
virtue of a contract with the owner, by
virtue of a lien, or under a valid legal
process, it is sufficient, as either a gen-
eral or special property in the property
for the conversion of which a recovery
is sought, is sufficient. Barton v. Dun-
ning, 6 Blackf. (Ind.) 209; Kemp 2.
Thompson, 17 Ala. 9; Slack v. Little-
field, Harp. (S. C.) 298. In other
words, the plaintiff must establish a
present right to the possession of the
property, by virtue of a general or
special title better than the defendant’s;
Hartshorn v. Williams, 31 Ala. 149;
Bowen v. Fenner, 40 Barb. (N. Y.)
383; Green v. Clark, 5 Den. (N. Y.)
497, and, failing to do this, he cannot
recover. Thus A, residing in Detroit,
consigned flour to B, at Boston, the
barrels being specifically branded and
marked. At the same time, A drew a
draft on B, in favor of C, expressed to
be ‘‘against said flour,” and annexed
to the draft a warehouse receipt and
certificate, agreeing therein to hold
the flour subject to the sole order of
B or assigns, and to ship the same to
him at the first opportunity; and also
stating that he had drawn his draft as
above, and that the receipt and certifi-
cate should remain attached to the
draft, and be evidence of a lien on said
flour in favor of the holders of the

In one case, Lord Exrtensorouer directed

draft until payment; but reserving to
B, the consignee, the right to sell the
same, holding the proceeds instead of
the flour, in trust for the holders of the
draft. C discounted the draft for A
and forwarded it, with the receipt and
certificate annexed, to B at Boston,
who accepted the same; but the draft
was not paid at maturity, and continued
to be held by C unpaid. While the
flour was in transitu, B, the consignee,
pledged it to the defendants as collat-
eral security for advances made by
them to him, and the defendants re-
ceived the flour and paid the charges
of transportation. In an action of
trover by A, the consignor, against the
defendants, the pledgees, it was held
that the title and right of possession of
the plaintiff in the flour had been so
far divested that he could not main-
tain the action. De Wolf». Gardner,
12 Cush. (Mass.) 19. So, where A took
and carried away iron ore from the
land of B under a claim of right, and
B took a bond from A to pay the value
of the ore, if it should be finally deter-
mined to be B’s property, held, that
the bond was a bar to an action of tro-
ver by B for the ore against one who

‘had purchased it of A; and that the

only remedy was on the bond. Briggs
Iron Co. ». North Adams Iron Co., 12
Cush. (Mass.) 114.

If the plaintiff had no right to the
possession of the goods when demand
was made, or where no demand is
necessary at the time when the action
was brought, he cannot recover, even
though the legal title to the goods is
in him. Clapp v. Glidden, 39 Me. 448;
Caldcleugh »v. Hollingsworth, 8 W. &
8. (Penn.) 302. °
488 TROVER.

that interest should only be allowed up to the time of conversion ;?
but this decision was subsequently denied to be law by Azsort, C.
J." That was an action of trover for East India Company’s® war-
rants for cotton. Evidence was given that at the time of the con-
version the cotton was worth 6d. per lb., but at the trial it was
worth 103d. He ruled that the jury were not limited to the former
value, saying: “ The jury may give the value at the time of the con-
version, or at any subsequent time, at their discretion, because the
plaintiff might have had a good opportunity of selling the goods if
they had not been detained.” And this rule is fortified by the anal-
ogy of actions for not replacing stock, in which we have seen that
the measure of damages, where there has been a rise in price, is not
the value at the time it ought to have been delivered, but at the
time of trial.’

Sec. 498. American rule.

In. America there is as usual a conflict. The high authority of
Kent, J., ranks in support of the doctrine of Lord Tzentrrpen. He
said, in one case, “The value of the chattel at the time of the con-
vérsion is not in all cases the rule of damages in trover. If the
thing be of a determinate and fixed value it may be the rule; but
where there is an uncertainty or fluctuation attending the value of
the chattel, and it afterward rises in value, the plaintiff can only be
indemnified by giving him the price of it at the time he calls upon
the defendant to restore it; and one of the cases even carries down
this value to the time of trial.” * On the other hand, Story, J., laid
it down, “that the'true rule is the value of the property at the

1 Mercer v. Jones, 8 Camp. 477. be recovered. Rice ». Hollenbeck,

In California, it has been held that,
where the value is fluctuating, the plain-
tiff may recover the highest value at the
time of the conversion or at any time
afterward, Douglass ». Kraft, 9 Cal.
562; Hamer v. Hatheway, 33 id. 117;
and such is the rule in Georgia, under
the provisions of the Code, § 3022;
Barnett v, Thompson, 37 Ga. 835. In
New York, Burt . Dutcher, 34 N. Y.
493; Kid v. Mitchell, 1 N. & M. (8.
C.) 334; Tatum v. Manning, 9 Ala.
144; Jenkins v. McConico, 26 id.
213. If timber is wrongfully taken
and converted into shingles, boards,
staves, etc., the enhanced value may

19 Barb. (N. Y.) 664; Walther ».
Wetmore, 1 E. D. Smith (N. Y.), 7.
In Pennsylvania, as to the wrongful
conversion of stocks borrowed, the rule
is that recovery may be had for the
highest price they reached between
the day of conversion and the day of
trial. Musgrave v, Beckendorff, 53
Penn. St. 310.
j oe v. Wilkinson, 1 C. & P.
25.

® See ante, p.190.

‘Cortelyou ». Lansing, 2 Caines’ Ca.
(N. Y.) 200; West ». Wentworth, 3
Cow. (N. Y.) 82.
TRovVER.

market price at the time of the conversion.” !
the doctrine generally prevailing.” Mr. Sedgwick takes the

1 Watt »v. Potter, 2 Mas, (U.S.)
U7.
* Kennedy v. Whitwell, 4 Pick.
(Mass.) 466.

The general rule in this country is,
that the measure of recovery is the
market value of the property at the
time of conversion, with interest to the
time of trial; Bissell o. Hopkins, 4
Cow. (N. Y.) 53; Funk 0. Dillon, 21
Mo.294; Nesbitt ». Lumber Co., 21 Min.
491; Curtis ». Wand, 20 Conn. 204;
Moody v. Whitney, 38 Me. 174; Hen-
shaw ». Bank of Bellows Falls, 10
Gray (Mass.), 568; but in some of the
States it is held that if the plaintiff
has sustained special damages by being
deprived of the use of the property, or
otherwise, such special damages may
also be recovered. Thus, in an action
of trover for the recovery of a slave, it
was held that the plaintiff might
recover not only the value of the slave
at the time of the recovery, but also
the value of its hire up to the time of
trial. Schley v. Lyon, 6 Ga. 530; Bank
o. Hatton, 1 N.& M. (8. ©.) 221. Ifthe
property has been converted into
money, the smallest measure of recov-
ery is the sum received therefor. Ewart
v. Kerr, 2 McMull. (8. C.) 141. The
amount of recovery, however, is regu-
lated by the circumstances; as, if the
plaintiff. has merely a life interest, or
a special interest in the property, and
the defendant has the reversion or is
the real owner, only the value of the
plaintiff's interest can be recovered.
Strong v. Strong, 6 Ala. 345. So, too,
if the property has been returned to
the plaintiff, even after action brought,
and accepted by him, the recovery is
to be limited to the plaintiff's actual
loss. If he has been damaged by
being deprived of the use of the prop-
erty, such damage is to be allowed
him; and if the property, when re-
turned, was worth less than when it
was received, the difference in value
must be given. Thus, if trover is
brought for a bank-note which at the
time of conversion was worth par, and
after action brought, or before, it was
returned, but at the time of. return it
was worth fifty per cent less, damages

62

489

% it
And this is [#840]

should be given for the difference in
value. Damages for an injury to the
property may be recovered in trover;
Jamison v. Hendricks, 2, Blackf. (Ind.)
94, even though the property itself
has been returned; as when the de-
fendant has abused it, or uses it for a
purpose different from that for which
he received it. Thus, where a horse is
let to a person to be driven to one
place, and it is driven to another, it is
treated as a conversion of the property,
and the plaintiff is entitled to recover
in trover the damages that he has sus-
tained. Disbrow v. Tenbroeck, 4 EH.
D. Smith (N. Y.C. P.), 397; Wheelock
», Wheelwright, 5 Mass. 104; Wood-
man v. Hubbard, 25 N. H. 67. But it
seems that if the plaintiff, knowing the
facts, receives payment for the whole
distance traveled, a recovery cannot
be had in this form of action. Rotch
0. Hawes, 12 Pick. (Mass.) 136.

The rule of damages also is in some
instances dependent upon the character
of the property. Thus, property may
have no market value, but may have a
special value to the plaintiff; as stereo-
type plates for printing labels to be
put upon goods manufactured or sold
by the plaintiff. Such property in
market would be worth comparatively
nothing; but to the owner it might be
of great value, and that would bea
very inequitable and harsh rule that
limited his recovery against a person
converting it to its market value, which
would really be but little, if any more
than the value of the materials; and
in such cases it is held that the meas-
ure of recovery is the fair value of
such property to the plaintiff. Stick-
ney v. Allen, 10 Gray (Mass.), 352;
Whitfield v. Whitfield, 40 Miss. 352.
See, also, Suydam v. Jenkins, 3 Sandf.
(N. Y.) 622. In the case of an officer
who brings an action against the owner
of property, as whose property it was
attached or against a receiptor, who
holds possession by the consent of the
owner, the limit of recovery is the
amount of the execution and costs,
where the property is worth more
than that amount.
Mich. 178..

Burk ». Webb, 32°
490 TROVER.

same view, “unless the plaintiff has been deprived of some par-
ticular use of his property, of which the other party was apprised,
and which he may be thus said to have directly prevented.” !

. Sec. 499. Damages for conversion of bill of exchange.

It is evident that the decisions in Mercer v. Jones and Greening
v. Wilkinson, cited above, are not so completely the converse of
each other, as that one must necessarily be right because the other
is wrong. Whatever the rule may be in the case of goods, whose
price is changed since the conversion, I conceive that damages in
trover for a bill of exchange should always include interest up to
the time of verdict, if the bill itself bore interest. There is no real
analogy between the increase in value of a bill, from the accumula-
tion of interest upon it, and the increase in value of goods, from a
rise in their price. The former increase is merely a compensation
for the loss undergone by delay in the payment of the debt which
the bill represents. The later increase is simply a gratuitous and
accidental bonus, obtained by the holder of the goods ; consequently,
if, in trover for goods, damages were fixed at the time of their con-
version, although their rightful owner might be deprived of a profit,
still it would be a profit which he might never have acquired, and
for which he gave no consideration; which was not, in fact, part of
his contract in purchasing the goods. On the other hand, if the
same rule were adopted in trover for a bill, the plaintiff would be
deprived of all interest on his debt from the time of conversion up
to the time of trial; he would be put in a worse position than he
could possibly have been in, had the wrongful act never been com-
mitted; and his loss would be one against which he had expressly
contracted when taking the bill, and which must have been contem-
plated by the party who appropriated it.

I am not aware of any case directly affirming or denying the au-
thority of Greening v. Wilkinson.” The question of damages in

1 Sedg. Dam. 505, 559, 4th ed.

2Mautn, J. is reported to have
spoken of it as ‘“‘hardly consistent
with the modern doctrine;” Reed 2.
Fairbanks, 138 C. B. 728.

In an action for a conversion of a
bill, draft, note or other security, the
amount expressed therein to be due
with interest, is prima facie the meas-

ure of recovery. American Ex. Co. 2.
Parsons, 44 Ill. 812; Robbins v. Pack-
ard, 31 Vt. 570; Menkens v. Menkens,
23 Mo. 252; Seals o Cummings, 8
Humph. (Tenn.) 442; and if it is
claimed that it is worthless, the de-
fendant must clearly establish the fact ;
Bredow 2. Mutual Savings Institution,
23 Mo. 252: Cothran v. Hanover Natl.
TROVER. A491

trover arose again in a modern case, under the following circum-
stances. The master of a ship, which was *disabled so as to
be unable to carry on its cargo, sold it at Bahia. The ship-
owner tendered the price for which the goods sold, minus general
average and other expenses, to their owner, who brought trover.
The goods had sold very low, and the jury were directed to give as
damages, not the price for which they had sold, but the invoice
price, and the amount paid for freight. Wu.ps, C. J., said, ‘The
question for the jury was, what was the amount of damage the
plaintiff had sustained by the unauthorized sale of the salt at Bahia.
They found that the value of the salt to the plaintiff at the time of
the sale was the invoice price, and the freight paid for carriage. I
cannot say that they have done wrong. As far as the defendants
are concerned it meets the justice of the case, and indeed it hardly
amounts to an indemnity to the plaintiff, for he loses the interest of
his money.” CreEssweLL, J., said, “I do not see how else they
eould estimate the value of the goods to the shipper than by taking
the last price, and adding the expense incurred in getting the goods
toward the merchant. What the cargo fetched by a forced sale at
Bahia clearly was no fair test. The plaintiff did not want the goods
there.”! The reader, in considering this case, will do well to dis-
tinguish between the value of goods and their selling price. The
two are only identical when the owner is under a necessity to sell ;
or, at all events, anxious todo so. In the present instance, the court
evidently wished to give their value at the time they were sold.
But their price at Bahia was no more a criterion of this value, than
the price which a carrier could obtain at a roadside public house for
a case of jewels, would be a criterion of their value in an action of
trover against him. It does not appear what the value of the goods
was at the time of trial, and no point was made to raise the question.
The decision seems, however, by implication, to exclude such a
measure, and to favor the doctrine that the price for which goods

[*341]

Bank, 40 N. Y. Superior Ct. 401; the conversion of gold coin, also, the
Baker v. Wheeler, 8 Wend. (N. Y.) same rule prevails, but its value in
505; Potter ». Merchants’ Bank, 28 money may be shown to be more;
N. Y. 641; and the same rule prevails Taylor v. Ketcham, 5 Robt. (N. Y.)
as to bank bills; Murray ». Pate, 6 507.

Dana (Ky.), 885. In an action for

‘Ewbank », Nutting, 7 C. B. 797, 809, 811.
492 TROVER.

might have been sold is a matter of speculative damage, and ought
not to be allowed for.!

This doctrine seems also to be strongly confirmed by the language
of ‘the legislature. The act’ which allows interest in actions of
trover and trespass, states that it is to be given * “ over and
above the value of the goods at the time of the conversion,”
or seizure. ‘This clearly assumes that the conversion is the time in
reference to which they are to be valued, and not any subsequent
period. .

Of course, instances might occur in which goods were intended
not for mere sale, but for some special purpose, which has been
frustrated by their conversion. Loss arising in this manner might,
it is apprehended, be recovered as special damage, and ought to be
so laid. This point will be the subject of discussion later in the
present chapter.

[*342]

Sec. 500, Damages vary according as plaintiff was forced to sell or not.

The same distinction alluded to above, as to whether a plaintiff
was, or was not forced to sell, has been relied on as affecting the
damages in a different class of cases. I refer to those in which the
conversion has been followed by a sale; and the attempt has been
to make the selling price conclusive as to the value of the property.

Where goods have been seized and sold after a bankruptcy by
some person who fails to maintain title to them, if the sale has
been bona fide, the assignees are only entitled to the amount pro-

duced by it, and not to the full value of the goods.

1 The actual value of the property at
the time of conversion, with interest, is
held in most of the States to be the
measure of recovery. Parsons v. Mar-
tin, 11 Gray (Mass.), 111; Selkirk 2.
Cobb, 13 id. 318; Ripley o. Davis, 15
Mich. 75; Derby ». Gallup, 5 Minn.
119; State v. Smith, 31 Mo. 566; Car-
lyon v. Lannan, 4 Nev. 156; King ».
Orser, 4 Duer (N. Y.), 481; Hendricks
v. Decker, 35 Barb.(N. Y.) 298; Ward
v. Benson, 31 How. (N. Y.) Pr. 411;
Backenstoss ». Stahler, 33 Penn. St.
251; Connor ». Hillier, 11 Rich. (8. C.)
L. 198; Moore v. Aldrich, 25 Tex. 276;
Park ». McDaniels, 87 Vt. 594; Ains-
worth ». Bowen, 9 Wis. 848; Hurd v,
Hubbell, 26 Conn. 389; Cook v. Loomis,
id. 488; Vaughan v. Webster, 5 Harr.

For they were

(Del.) 256; Greer v, Powell, 1 Bush
(Ky.), 489; Robinson ». Barrows, 48
Me. 186; Brown v. Haynes, 52 Me. 578;
Stirling v. Garrittee, 18 Md. 468; Bal-
timore, etc., Ins, Co. v. Dalrymple,
25 Md. 269; Kennedy ». Whitwell, 4
Pick. (Mass.) 466; Watt o. Potter, 2
Mas. 77; Lillard ». Whitaker, 3 Bibb
(Ky.), 92; Greenfield Bank ». Leavitt,
17 Pick. (Mass.) 1; Weld ». Oliver,
21 id. 559; Johnson o. Sumner, 1
Mete. (Ky.) 172; Sanders 0. Vance, 7
T. B. Monr. (Ky.) 209; Baldwin o.
Munro, Anth. (N. Y.) 156; and, what-
ever may be thought of the justice of
the rule in special cases, the rule is too
well settled to make discussion upon
this point profitable.
73.&4 W. IV, ch. 42, § 29.
TROVER. 493

themselves bound to sell, and in such a case, where the action is
against the sheriff, the jury may, if they think fit, deduct, from the
damage, his expenses in selling. For the assignees would, in any
case, have had to incur them.’ But if the assignees could have sold
by private contract, or if the sales by the sheriff had taken place in
different counties, so as to cause unnecessary expense, it would be
otherwise." On the other hand, where the plaintiff was under no
necessity to sell, as where her goods were seized under a ji. fa.
against a man falsely supposed to be her husband, she was held
entitled to the full value of the goods, and not merely the price for
which they sold.*

Sec. 501. Damages when article has changed its form.

*A curious question has been raised in America, as to the
value at which an article is to be estimated, which has been
changed into some new form by its wrongful taker. In New York
it has been several times ruled, that the whole value of the article
in its new form may be recovered; as for instance, where timber
_ has been converted into boards, wood into coals, black salt into
pearl-ashes.” The doctrine is made to rest on the authority of some
old cases. A defendant in trespass pleaded that a third person had
entered upon his land, and cut down his trees and made timber of

[*343]

1 Whitmore v. Black, 138 M. & W.
507; Whitehouse v. Atkinson, 3 C. &
P. 344.

2 Clark ». Nicholson, 6 C. & P. 712;
10. M. &R. 724, 8. C.

3Id. See Smith v. Baker, L. R.,
8 C. P. 350; 42 L. J, C. P. 155, where
the court seemed to think that if the
trustee in bankruptcy elected to treat
the sale asa tort, he would be entitled
to recover the full value of the goods,
and any damages resulting to the es-
tate from the sale; but that if he rati-
fied the sale he could only recover the
proceeds.

4Glasspoole v. Young, 9 B. & OC.
696. Property may have a special
value to the owner, and little or no
value to others; therefore in such cases
the value to the owner, rather than the
market value, controls, as in the case
of stereotype plates for printing labels,
which are of great value to the owner,
but of very little to others, it has been
held that the fair value to the plaintiff

may be recovered. Stickney v. Allen,
10 Gray (Mass.), 352.

* 8 Babcock v. Gill, 10 Johns. (N.
Y.) 287; Betts ». Lee, 5 id. 348; Cur-
tis ». Groat, 6 id. 168; Walthur vo.
Wetmore, 1E.D.8.(N.Y. C. P.) 7;
Matthews v. Coe, 56 Barb. (N.Y.) 430.
But while this rule has obtained in
New York, it is not recognized else-
where. Thus where the defendant by
mistake took the plaintiff's wood
which was cut and piled in F., and
conveyed it toJ. where the plaintiff
demanded it, it was held that the value
at F. and not its value at J. was the
measure of recovery. Weymouth v.
Chicago, etc., R. R. Co., 17 Wis. 550.
So, in trover, for coal mined upon the
plaintiff’s land and carried away by
mistake, it was held that the recovery
must be limited to the fair value of
the coal in place, and such injury to
the land as the mining may have caused
and not the value of the coal mined.
Forsyth v. Wells, 41 Penn. St. 291.
494 TROVER.

them, and given the timber to the plaintiff. That he had retaken
the timber, which was the trespass complained of. The court held the
plea good, saying, “ In all cases in which a thing is taken tortiously
and altered in form, if that which remains is the principal part of the
substance, so that it may still be identified (n’est le notice perde) ;
as, for instance, if a man takes my coat and makes a doublet of it,
I may retake it. And so if a man takes a piece of cloth and then
sews a piece of gold to it, I may still retake it. And if aman takes
trees and afterward makes boards of them, the owner may still re-
take them quia major pars substantie remanet. But if the trees are
planted in the ground, or a house is made of the timber, it is other-
wise. Quere (by the reporter), as to the house, for it is the prin-
cipal substance.”! But it is apprehended that the case is not in
point. The right of an owner to retake his own property, though
altered in form and increased in value, when he cannot separate what
is his own from that which is added to it, rests upon necessity. It
by no means follows that a jury, in giving damages, are bound to
give the value of the altered chattel instead of that of the original
when the one value could be severed from the other. The reason no
longer exists. The doctrine of the Roman law, upon which ours is
founded in this respect, goes no further. It states that in such a
case, “Si ea species ad priorem et rudem materiam reduci possit,
eum videri dominum esse, qui materize dominus fuerit ; sinon possit
reduci, eum potius intelligi dominum, qui fecerit.”* But this merely
decides *who shall have the property, not what amount of
damage shall be received for the alteration. It may be said
that if the property of the improved article continues in the original
owner, he must be paid for its detention on its full value. But I
conceive that this by no means follows.. Where aman mixes his
own goods with that of another, so as to be undistinguishable, the
property in the entire mass vests in the latter.’ But if the former
were to carry away the entire mass as soon as he had mixed it, can
it be said that the value of all could be recovered in trover? In
short, may not the real principle be this, that the property in the
improvement never does, in fact, vest in the original owner; but

[*344]

‘FB, Moore, 19 pl. 67; and so5H. *Poph. 38; Ward », Eyre, 2 Bulst.
VII, 15; 12 H. VIII, 10. 323.
22 Inst. I, 25.
TROVER. 495

that, as his property in the subject-matter continues, he has a right to
have it back either in value or in specie; in the latter case the im-
provements must follow, because they cannot be separated. In the
former case they need not.

Sec. 502. Cases in which minerals have been severed.

The only English authority, that I am aware of, which seems to
oppose this view, is that of a class of cases in which the question
has been, as to the mode of valuing minerals wrongfully severed and
carried away. The form of action in the first three cases that oc-
curred’ was trespass, and there it was held that the coal should not
be estimated at its value as it lay in the bed, but at its price when it
first became a chattel, and that no deduction could be made on ac-
count of the labor bestowed in digging it. The same rule, however,
was extended to an action in trover in another case, where Parxs,
B., told the jury, that if there was fraud or negligence on the part
of the defendant, they might give as damages, under the count in
trover, the value of the coals at the time they first became chattels,
on the principle laid down in Martin v. Porter, but that if they
thought the defendant acted fairly and honestly, in' the full belief
that he had a right to do what he did, they might give the full value
of the coals as if the coal field had been purchased from the plain-
tiff.” But *these decisions clearly do not support the Ameri- #345]
can doctrine. The defendant did not bestow any new value
upon the coal after he seized it. He merely claimed to be paid for
his own unlawful act in taking possession of it. It was just as ifa
person, sued in trover for furniture, should ask to be allowed for the
expense he had gone to in breaking open the plaintiff's house and
picking his locks. No doubt the act of severance gave the coal a
greater value than it had while buried in the mine. But this act
could not be reimbursed in either form of action. In trespass it
was itself the wrong complained of, and, therefore, clearly could
not be at the same time a ground of counter-claim; on the other

"Martin 0. Porter, 5 M. & W. 352; 40L. J. Ch. 389; Job v. Potton, L.
Wild v. Holt, 9 id. 672; Morgan v. R., 20 Eq. 84; 44 L. J. Ch. 262,
Powell, 3 Q. B. 278. where expenses of hewing and raising

2 Wood v. Morewood, 3 Q. B. 440, were allowed. See, too, Atty.-Gen.v.
n. So, Hilton », Woods, L. R,4 Tomline, 5 Ch. D. 750; Forsyth vo.
Eq. 482; 86 L. J. Ch. 941; United Wells, 41 Penn. St. 291; Sheldon o.

Merthyr Collieries Co., L. R., 15 Eq. Davey, 42 Vt. 687.
46; Jegon v. Vivian, L.R., 6 Ch. 742;
496 TROVER.

hand the action of trover is equivalent to the plaintiff saying, “ You
had my leave to sever the coals for my use, but you then wrongfully
appropriated them to your own use.” Here, too, the severance can-
not be allowed for, as there was no contract to that effect, and the
damages must be the value of that property which belonged to the
plaintiff, the moment before the act complained of, viz., the severed
coal. In fact, it is hard to see what other damages could be given
in trover. It can only be brought in respect of a chattel, and the
value of a thing as a chattel, and not in some previous state when
' it was a fixture, must be the measure of damages. And, accord-
ingly, in trover for fixtures which have been wrongfully removed,
the plaintiff can only recover their value as chattels, though it may
be less than their value was as fixtures.1 The rule should equally
apply where it is for the benefit of the plaintiff and not of the
wrong-doer.

On the other hand there are two direct decisions, which probably
settle the point. The first was an action of trover against a dyer
for clothes given to him to be dyed, who claimed to retain them till
the price of dyeing other goods was paid. This was overruled, and
the plaintiff had a verdict, but only for the amount of the goods as
they were sent to him, in their white state.” This, of course, is not»
conclusive, as the work was done by the plaintiffs orders, and the
Ks defendant *had a lien to that extent. A later case, however,
[*346] | ;

goes much farther. Trover was brought for a ship, the
property of the plaintiff, which had been in an unfinished state at
the time of the conversion, but was afterward completed and sent
to sea by the defendant. The plaintiff claimed its full value when
finished, on the authority of Martin v. Porter. The court of com-
mon pleas ruled, that the damages were its value at the time of con-
version, which might be ascertained by taking its value at the place
where it was built, when completed according to contract, and de-
ducting the amount which it would have been necessary to lay out
for that purpose after the conversion. Mavis, J., said, in the
course of the argument, “ Although it be true that in trover the
owner may recover for the conversion of the improved chattel, it

1 Clarke v. Holford, 2 C. & K. 640. So Hyde ». Cookson, 21 Barb. (N. Y.)
2Green v. Farmer, 4 Burr. 2214; 92. See, also, Forsyth ». Wells, 41
Penn. St. 291.
TROVER. 497

does not follow that he is entitled to recover the improved value as
damages. The proper amount of damages is the amount of pecun-
iary loss which the plaintiffs have been put to by the defendants’
conduct.”

Sec. 503. Where goods deposited with defendant under void contract.

Where the plaintiff has deposited or transferred goods to the de-
fendant on a contract, which is void ab initio, e. g., for usury, he may
recover them in trover.’. And in such a case the full value of the
goods must be given as damages, without deducting the amount
actually paid to the plaintiff in pursuance of such contract.’

Sec. 504. Presumption as to value in certain cases.

When the defendant in trover will not produce the article, it will
be presumed against him to be of the greatest value that an article
of that species can be.* And on the same principle, where part of
a diamond necklace, which had been lost by the plaintiff, was
traced into the possession of the defendant, who could not account
satisfactorily for having it, and did not swear positively that the
whole set had not come into his hands, the jury were directed to
presume that the whole necklace had been in his custody, and to
give damages accordingly.’ In all other cases, however, the plain-
tiff must strictly prove the amount taken, and its value, even
*though the conversion be admitted by the pleadings. 347]
Otherwise there would be no evidence of damage more than
nominal.*

Sec. 505. Value when sold.

Where goods are sold under a distress, the appraised value is
never conclusive as to their worth, unless the jury are satisfied that
the best means were taken to ascertain the value; and the fact that
they sold for no more makes no difference.’

Sec. 506. Trover for title deeds.

In trover for title deeds, the jury give the full value of the estate

' Reid v. Fairbanks, 13 OC. B. 692; 4 Armory v. Delamirie, 1 Stra. 504;
22 L. J. C. P. 207, 8. C. 1 Sm. L. Ca. 315, 6th ed.

*Tregoning ». Attenborough, 7 5 Mortimer v. Cradock, 12 L. J. C.
Bing. 97; Hely v. Hicks, 3 Ir. L.R. P. 166.

92. ® Cook v. Hartle, 8C. & P. 568.
’ Hargreaves v, Hutchinson, 2 Ad. ‘Clarke ». Holford, 2 C. & K. 540,
& Ell. 12, and see ante, p. 340.

63
498 TROVER.

z

to which they belong by way of damages, which, however, are gen-
erally reduced to 40s. on the deeds being given up.'

Sec. 507. Bills and notes.

In actions for the recovery of bills, the amount of the bill is also
the measure of damages.” It is no ground for reducing the damages
that after the conversion the defendant has by his own act lessened
the value of the bill, by procuring part of it to be paid.’ But in
such a case, if he brought into court the bill, and the money he had
received in part payment of it, the verdict might be entered for a
nominal sum.‘ In another case the bills in question had been issued
by the government of Peru, at the interposition of the British gov-
ernment, to the plaintiff, as compensation for detention of his ship,
and were retained by the defendant, and a verdict found against
him for the full value of the bills. The bills at the place where
they were payable were at a discount of 69 to ‘70 per cent, and were
of no value at all in England, where the action was brought. The
plaintiff, by affidavits, showed that the bills would in his hands be
worth the full amount they represented, being backed by the weight
of the British *government. The court directed that they
should be taken as worth the full amount of dollars they
represented, and that as to the value of the dollars, the plaintiff
should be in the same situation as if the bills were drawn on a house

[#348]

’

1Loosemore v. Radford, 9 M. & W.
659; Coombe v. Sansom, 1 Dowl. & Ry.
201. In Mowry ». Wood, 12 Wis.
413, it was held that, in trover for
title deeds, where the title has not
been affected, and the defendant has
not been guilty of fraud or oppression,
but the loss or destruction has oc-
curred through his mistake, slight
negligence, or omission, the just rule
of damages would he such sum as
would recompense plaintiff for actual
loss and for his trouble and expenses
in establishing and perpetuating, by
legal proceedings, evidences of his
title. But if the taking, loss or
destruction was wanton or malicious,
punitive damagesmay be awarded ; and
if the defendant holds and vexatiously
refuses to surrender the instrument,
damages to the full value of the land,
or even more, may be given, to com-
pel return, or as a penalty..

*Numerous decisions in America
have settled what seems to be the
true rule, that the measure of damages
is prima facie the amount of the bill
or note, but the insolvency of the
parties liable thereon, payment in
whole or in part, or any other facts
tending directly to reduce its value,
may be shown in mitigation of dam-
ages; Booth v. Powers, 56 N.Y. 22;
Latham »v, Brown, 16 Iowa, 118; Pot-
ter ». Merchants’ Bank, 28 N. Y. 641;
Walrod ». Ball, 9 Barb. (N. Y.) 271;
King o. Ham, 6 Allen (Mass.), 298;
and in the case of a bond, the meas-
ure of recovery is such a sum as the
plaintiff is entitled to recover from
the obligee in the bond. Romig 2.
Romig, 2 Rawle (Penn.), 241.

8 Alsager ». Close, 10 M. & W. 576.
ae interest, see ante, pp. 490, and

“Id. 584.
TROVER. 499

of unquestionable solidity in Lima, the place of payment. The net
amount recoverable was to be the value of such a bill in London,
taking into account the rate of exchange resulting from the expense
and risk of transfer between Lima and London." |

Sec. 508. Damages when security is void.

If the security is void at the time of the conversion, and not by
any act of the defendants, only nominal damages can be recovered.
This was held in two curious cases where in fact the security, though
void, turned out to be of value. A bankrupt delivered a check on
his bankers after bankruptcy to a creditor, who obtained the money
on it. The assignees brought trover for the check. The jury gave
the full amount of the check, and their verdict was set aside.
Mansriexp, C. J., said: “The plaintiffs proceed on the ground that
the check is worth nothing, being drawn without their authority ;
how then can they recover on it the sum of 3002. ?? In the second
case, the plaintiff had assigned a policy of insurance to the defend-
ant as security for the debt. After the assignment it turned out that
the policy was utterly void. This was admitted by both plaintiff
and defendant. The company, however, paid the defendant a cer-
tain sum upon it, merely as a gratuity, upon his giving it up to be
canceled. In an action of trover it was held that the full amount
of the policy could not be recovered, because it was confessedly bad ;
nor the sum paid to the defendant, for this was merely a gratuity.
But that, as he had retained the actual document after his right to
do so had ceased, the plaintiff was entitled to a verdict with nomi-
nal damages for the parchment.’

Sec. 509. By the act of the defendant.

But where the worthlessness of the document arises from the
defendant’s own wrongful act in mutilating it, as where the action
was for an unstamped guarantee for “half the amount of certain
fixtures, say about 100/.,” from which the defendant had erased his
signature, the jury were held to have *been justified in giv- [#349]
ing the full 1007. as damages. And it was no misdirection
that they were not told to find in the alternative, that the damages

'Delegal v. Naylor, 7 Bing. 460. 3 Wills o. Wells, 2 Moore, 247; 8
* Mathew ». Sherwell, 2 Taunt. 439. Taunt. 264, S. C.
500 TROVER.

should be nominal on the memorandum being given up, because the
defendant’s own act had prevented such a course being just.'

Sec. 510. Damages by estoppel.

The same doctrine of estoppel was carried to a remarkable extent
in one instance, when the plaintiff was allowed to recover in respect
of a chattel which had never existed. Anagent had been employed
to effect an insurance, and had asserted that he had done so, which
was not the fact. The principal brought trover for the policy.
Lord Mansrietp refused to allow the defendant to contradict
his own representation, and held that the same damages should be
given as if the policy had been really effected. “I shall consider
the defendant,” he said, “the actual insurer, and therefore the
plaintiff must prove his interest and loss.”

Sec. 511 Interest.

The jury may, if they think fit, give damages in the nature of
interest over and above the value of the goods at the time of the
conversion.” Even independently of this statute they were allowed
to give interest on a bill of exchange,‘ probably on the principle
that asa bill by its nature bears interest, its value must be com-
pounded of the amount for which it is given, and the interest of

which the plaintiff is deprived by its conversion.

1 W’Leod v. M’Ghie, 2 Sco. (N. R.)
605; 2M. & G. 326.

° Harding v. Carter, Park. Ins. 4.

33 & 4 W.IV, ch. 42, § 29; Cor-
nell Bank v, Jones, 18 Tex. 811.

Interest from the time of conversion
is allowed in all cases in the discretion
of the jury. Thus, in trover brought
by the indorser of a bill of lading to
recover property held by the defend-
ant under an attachment levied upon
it subsequent to the assignment, it
was held that the measure of recovery
was the value of the property, with
interest from the time of conversion.
Winslow ». Norton, 29 Me. 419. See,
also, Thrall 2 Lathrop, 30 Vt. 307;
Simpson v. Feltz, 1 McCord’s (8.C.) Ch.
213; Matthews v. Menedge, 2 McLean
(U. 8.), 145; but in some cases, it is a
matter of right. Curtis ». Ward, 20
Conn. 204; Burney ». Pledger, 3 Rich.
(8. C.) 191; Ryburn v. Pryor, 14 Ark.
505; Funk v, Dillon, 21 Mo. 294;
Hyde v. Stone, 7 Wend. (N. Y.) 354;

Chauncey v. Yeaton, 1 N. H. 157.
When the defendant has sold the
property or has exchanged it for other
property and sold that property, the
plaintiff is at least entitled to recover
the amount for which the property
was sold, even though it was sold for
more than its actual value, and if it
has been exchanged for other prop-
erty, he is at least entitled to recover
the value of the property received in
exchange therefor, and if the property
received in exchange has been sold,
he may recover the amount for which
it was sold. But this is not the limit
of recovery if the property converted
was actually of greater value, but in
all cases, such sums may be recovered
upon proof of sale, etc., without any
other proof of value. DeClerq ».
Mungin, 46 Tl. 112.

‘Paine v. Pritchard, 2 C. & P. 558.
See as to the time up to which inter-
est is allowed, ante, p. 487.
TROVER. 501

Sec. 512. Special damages.

Special damage may be recovered in this form of action if laid,
but not otherwise. In trover for carpenter’s tools, where the decla-
ration stated that the plaintiff had been prevented working at his trade,
10/. above the value of the articles was given.'| And similarly, in
trover for a pony, where the damage was that the plaintiff had been
forced to hire other horses instead.” And in a later case, CrusswELL,
J., said that consequential damage might arise where a party whose
property had been converted was under a contract to sell *it.’
The special damage must, however, be the necessary conse-
quence of the defendant’s act, and must be the immediate, not .the
remote, result of it. The first of these requisites may be illustrated
by a case which arose between the sheriff and assignees in bank-
ruptcy. The sheriff seized the bankrupt’s goods under a jt. fa., and
placed his man in possession upon the premises. Subsequently the
messenger under the commission took charge of the goods, but the
sheriff's officer still remained. Later still a formal demand was
made upon the sheriff, and finally the goods were given up to the
assignees and accepted unconditionally. They sued in trover for
the conversion, without laying special damage; and sought to re-
cover the rent of the premises for the quarter, during which the
goods have been lying there in charge of the sheriff, and for the
expenses of the messenger. Part of the rent had accrued before
their messenger had entered, and before any demand of the goods.
No proof was offered that the rent could be apportioned, or that
they could have given up the premises, even if the sheriff had not

[#350]

' Bodley 0. Reynolds, 8 Q. B. 779.

° Davis v. Oswell, 7 C. & P. 804.

* Reid v. Fairbanks, 13 C. B. 692;
22 L. J.C. P. 206, 208. See, also,
Wood ». Bell, 5 E. & B. 772; 25 L.
J. Q. B. 148, in Q. B. Quite recently
a plaintiff who had bought champagne,
which could not be got elsewhere, at
fourteen shillings per dozen, and had
contracted to sell it at twenty-four
shillings to a person about to leaveEng-
land immediately, recovered as dam-
ages in trover against one who wrong-
fully converted the wine, the price at
which he had contracted to sell it, al-
though the defendant had no notice
of the sale. The court of queen’s
bench drew a distinction between

‘

special damage and special value, and
said that they were inclined to think
that to enable a plaintiff to recover
special damage, which did not form
part of the actual present value of the
goods, as in the case of withholding
the tools of a man’s trade, Bodley
vo. Reynolds,. above, the defendant
must have some notice of the incon-
venience likely to be occasioned, but
no notice could be necessary where a
special value was attached by special
circumstances to the article converted.
Notice could not affect that value,
though it might affect the conduct of
the wrong-doer. France v. Gaudet,
L. R., 6Q.B. 199; 40 L. J.Q.B. 121.
502 TROVER.

been there. It was held that these sums could not be recovered at
all, as they had not been specially laid ; and Tivpat, C. J., doubted
whether they could in any way fall within the remedy of an action
of trover, not being a damage necessarily consequent on the wrong-
ful conversion of the goods.’ As to remoteness of damage, I may
refer to a case already cited,” where, in trover for a ship, the court
decided that the plaintiff could *not claim as damages the
freight he would have earned on the next voyage; and
Mavts, J., said that must be included in the value of the ship itself.
People would not pay for a ship that could not earn freight.

In a Pennsylvania case * a creditor of the vendor of a chattel, the
price of which had been fully paid, levied upon it as the vendor’s
property, and in trover by the vendee it was held that he was not
entitled to recover the profits which might* have been made by the
use of the chattel, or loss from his inability to employ men and
horses by reason of the detention. But the court seems to intimate
that, if there had been circumstances of fraud or oppression, justify-
ing vindictive damages, proof of such loss would have been proper.

[#351]

Sec. 513. Action for seizure under the customs act.

Where an action shall have been brought on account of the
seizure of any goods, seized as forfeited under any act relating to
the customs, and a verdict given against the defendant, if the judge
shall certify that there was a probable cause for the seizure, the
plaintiff shall only be entitled to 2d. damages, and to no costs of
suit."

Sec. 514. Mitigation of damages. Want of title.

Having pointed out the principal rules as to the measure of dam-
ages in this action, it will be necessary to examine what circum-
stances will reduce them. One of the principal of these arises out
of a partial title.

Want of title must always be specially pleaded, and no evidence
can be given under the general issue, even in mitigation of dam-

"Moon v. Raphael, 2 Bing. N. C. ‘The Customs Consolidation Act,
310, 315. 1858, 16 & 17 Vict., ch. 107, § 312.

? Reid v. Fairbanks, wbi sup. 8. 853 of this act repeals 8 & 9 Vict.

* Farmers’ Bank v. McKee, 2 Penn. ch. 87, § 116, cited in the first edition.
St. 318.
TROVER. 503

ages, to show that the property really belonged to another person."
Where there is a proper plea, however, any thing which goes to
diminish the extent of the plaintiff's interest will go in reduction of
the verdict ; as, for instance, proof that the parties named in the
plaintiff's lease as lessors had not all signed it;* or that the plaintiff
had only a share in the chattel sued for, in which case he can only
recover the amount of his share.’ "And so where the plaintiff was
merely nominal owner of the goods, and had become so to defeat
the creditors of his brother, the real owner, Eruz, J., being of
opinion that the whole arrangement was a mere scheme to baffle
justice, directed the jury to take, as the measure of damages, the
plaintiffs real and bona fide interest in the goods in question, and
not their full value; upon which a verdict of 1-4d. was returned.‘
The same view was taken in another case arising out of different
circumstances. *The plaintiff had assigned his goods to the [#359]
defendant to secure a debt, subject to a proviso that they
should remain in the plaintiffs possession till default of payment, or
till a particular notice was given by the defendant. The defendant
seized the goods before either of these conditions was complied
with. It was held that the plaintiff might sue him, but that the
value of the goods, as between the parties, was not the proper
measure of damages. The plaintiff could only recover an amount
proportioned to his interest in them at the time of the taking.’ This:
was an action of trespass, but the court said that trover would
equally have lain, and the principle as to damages would clearly not
be affected.

Where trover is brought against an officer for an illegal sale of
property upon legal process, where the seizure was lawful, as where
it is sold after the time limited by statute in which it shall be sold,
the plaintiff is only entitled to recover the value of the property,
less the debt for which it was sold.°

1 Finch v. Blount, 7 C. & P. 478;
Jones v, Davies, 6 Ex. 663.

? Taylor vo. Parry, 1M. & Gr. 604.

* Nelthorpe v. Dorrington, 2 Lev.
118; Dockwray v. Dickenson, Skinn.
640; Addison v. Overend, 6 T. R.
766; Sedgworth v. Overend, 7 id. 279;
Bloxam v. Hubbard, 5 Hast, 407;
Johnson v. Stear, 15 C. B. (N. 8S.)
337; 88 L. J. C. P. 183, per Wi-
LIAMs, J.

4 Cameron ». Wynch, 2 0. & K,
264.

5 Brierly v. Kendall, 17 Q. B 937;
21 L. J. Q. B. 161. So Toms o.
Wilson, 4B. & 8. 455; 32 L. J. Q. B,
382, in Ex. Ch.; and see Massey v.
Sladen, L. R., 4 Ex. 13; 38 L. J,
Ex. 34.

6 Pierce v. Benjamin, 14 Pick. (Mass.)
356.
504 TROVER.

Sec. 515. Johnson v. Stear.

More recently the assignee of a bankrupt brought trover for
brandies, the dock warrant for which had been deposited by the
bankrupt with the defendant as security for a loan, to be repaid on
the 29th of January, or, in default, the brandies to be forfeited. On
the 28th, after the bankruptcy, the defendant agreed for the sale
of the brandies, and on the 29th he delivered the dock warrant to
the purchaser, who took possession on the 30th. This was held to
be a wrongful conversion by the defendant ; but as the value of the
brandies did not exceed the amount of the loan, the majority of the
court of common pleas were of opinion that the plaintiff could re-
cover only nominal damages. They considered that the wrongful
act of the pawnee did not annihilate the contract between the
parties, nor the interest of the pawnee in the goods under the con-
tract; that if the plaintiff's action had been for breach of contract
in not keeping the pledge till the given day, the compensation to
which he would have been entitled would have been a nominal sum
only; and that although the plaintiff's action was in name for
wrongful conversion, yet in substance the cause of action was the
same, and the change in the form of pleading ought not to affect
the amount of compensation. Therefore, the damages were to be
measured by the loss really sustained, and in measuring them the
interest of the defendant in the pledge at the time of the conversion
#353] was to be taken *into the account.! Wuturams, J., dissented

on the ground that the defendant’s lien was annihilated by
his wrongfully parting with the goods, and thereupon the owner’s
right to possession revived, and he was entitled to recover the full
value as damages in an action of trover. The judgment of the
court was, however, adopted by the court of exchequer chamber in
a subsequent case.”

Sec. 516. Damages in action by bailee, etc. Damages in action against un-
paid vendor.

Exactly the same rule applies where the plaintiff is not the ac-
tual owner, but only a bailee, or person holding under a lien.

1 Johnson v. Stear, 15 C. B.(N. 8.) goods by the pledgee put an end to
330; 83. L J. C. P. 180. This case the contract of pledge so as to entitle
was much discussed in Donald v. the pledgor to possession.

Suckling, L. R., 1 Q. B.585; 35 L. J. * Halliday », Holgate, L. R., 3 Ex.
Q. B. 232, but mainly upon the ques- 299; 87 L. J. Ex. 174.
tion whether the parting with the
TROVER. 505

Where goods are taken from under his control, either by a stranger
or by the general owner, whose right to the possession has not been
restored, he may sue in trover or trespass. His damages against the
stranger will be the entire value of the thing, because he is liable
over to the owner ; but in an action against the owner he can only
recover the amount of his interest in it.! And so if an unpaid
vendor of goods, which are left in his custody by the vendee,
wrongfully and without any default on the part of the vendee, sells
and delivers them to another person, as he thereby loses his right to
sue the first vendee for the price, the latter will not be entitled to
recover from him in trover the full value of the goods, but only
that amount diminished by what he would have had to pay the
vendor for them.” Against a wrong-doer not claiming under the
vendor he would have been entitled to the full value.’

Sec. 517. Cost of keep of an animal.

Where the proprietor of land seized an animal, as damage fea-
sant, under circumstances which made the seizure wrongful,
*and after feeding it for several days sold it, the owner was [#354]
held entitled to the full value of the animal in trover, with-
out any deduction for the feeding.‘

Sec. 518. Reversioner.
Where a chattel has been let to hire, the owner cannot sue in
trover for it, because he has parted with the right to the possession.

1 Heydon’s case, 13 Rep. 69; Story Where the plaintiffs had possession

on Bailm., § 352; per Crompton, J.,
Waters v. Monarch Assurance Co. , 25
L. J. Q. B. 102, 106; Parish 2.
Wheeler, 22 N. Y. 494; Swire ».
Leach, 18 C. B. (N. 8.) 479; 34 L. J.
C. P. 150; White v. Webb, 15 Conn.
3802; Ullman ». Barnard, 7 Gray,
554,

° Chinery v. Viall, 5 H. & N. 288;
29 L. J. Ex. 180. See post, p. 521.
Where a sale was conditional, and part
of the purchase-money was paid, and
the chattel was handed over to the
vendee, the vendor was held, in
America, entitled, on the condition
not being performed, to recover in
trover the full value, without any de-
duction for the partial payment,
Brown v. Haynes, 52 Me. 578;
Angier », Taunton Paper Co., 1 Gray,
621.

64

of one hundred and ninety barrels,
forty of which were their own prop-
erty, and they had an absolute right
to sell the others, retain out of the
proceeds what was due from the manu-
facturer, and account to him for the
surplus, and the defendant, by virtue
of an attachment against the goods of
the manufacturer, took the barrels
from the plaintiff’s possession, it was
held, that the plaintiffs might recover
from the defendant the amount of their
advances to the manufacturer. Frost
». Willard, 9 Barb. (N. Y.) 440.

3 Turner v. Hardcastle, 11 C. B. (N.
S.) 683; 31 L. J.C. P. 193.

4 Wormer v. Biggs, 2 C. & K. 31.
See 17 & 18 Vict., ch. 60, § 1,as to the
right to sell a distress damage feasant
for the expenses of its keep.
506 TROVER.

He may, however, maintain an action against a third person for
a permanent injury to it.!

Sec. 519. Right of action against third parties.

It was stated oditer in one case, that where goods were converted
under circumstances which gave the plaintiff a right of suing dif-
ferent parties, the jury might reasonably give small damages against
one, on the ground that an action would lie against the other.’
This seems a curious reason for mitigating damages. I have noticed
the dictum in a previous chapter,’ and ventured, with great defer-
ence, to offer some objections to it.

There are no degrees of wrong in an action ew delicto. The fact
that one person was less instrumental in the loss than another, does
not tend to lessen the amount that should be recovered of him for
the loss. It is his misfortune that he participated in the wrong, and
having done so, to the extent that he may be charged at all, he is
chargeable with the entire loss, if the person injured sees fit to pro-
ceed against him alone.

Sec. 520, Re-delivery of property.

If the defendant, after conversion, re-deliver the goods, an action
will still lie for the original conversion, and the re-delivery will only
go in mitigation of damages.‘ But the jury need not give more
than nominal damages, even where the re-delivery has been after
action brought, unless actual damage has been occasioned either by
an injury to the property converted, or by the actual and necessary
consequences of the conversion, as where money has been neces-

1 Mears v. L. & 8. W. Ry. Co., 11 C.
B. (N. 8.) 850; 81 L. J.C. P. 220.

2 Per Baruny, J., Morris v. Robin-
son, 3 B. & C. 205; and per Hotroyp,
J., id. 206.

3 Ante, p. 154.

‘Bull. N.P. 46.

Yale v. Saunders, 16 Vt. 243; Gibbs
». Chase, 10 Mass. 128; Greenfield
Bank ». Leavitt, 17 Pick. (Mass.) 1;
Easton ». Woods, 1 Mo. 506; Smith ».
Downing, 6 Ind. 374; Hibbard ».
Slewart, 1 Hilt. (N. Y.) 207. After
action commenced, the defendant can-
not at common law compel the plaintiff
to receive back the property, and, even
where provision is made by statute
that property may, after action

brought, be tendered in mitigation, it
is held that the plaintiff is not bound
to receive it, if the property has been
essentially injured. Green vo. Sperry,
16 Vt. 390; Hart » Skinner, id.
138. A ratification of a tortious act,
Operates as a waiver of the tort.
Hewes v. Parkman, 20 Pick. (Mass.)
90. But, where the property has been
injured after the conversion, the
question as to whether by receiving it
back, the plaintiff has waived the
tort, is for the jury, and will depend
upon the circumstance whether, at
the time he received it, he knew of
the injury. Lucas 2. Trumbull, 15
Gray (Mass.), 306. ;
TROVER. 507

sarily paid to recover the chattel.!. In trover against a carrier, it
appeared that he had offered to deliver the goods two days after
they ought to have been delivered ; and that the plaintiffs, thinking
they had incurred loss by the delay, refused to receive them, and
sued in this form. Defendant paid the price of thé goods and the
costs into court, and pleaded no damage ultra, which the jury found
for him. A motion for new trial was made on the ground that in
any case the plaintiff was entitled beyond the value of the goods to
nominal damages for the conversion, but the rule was refused.
Lord Axincer assented to *the principle laid down, but said
[*355]
the jury were not bound by the cost price. And so, non con-
stat but the sum paid in did, in their estimation, include damages.’
Applying the goods ina manner which may be for the owner’s
benefit, but is not in accordance with his wishes, is not a re-delivery
going in mitigation of damages. Therefore where the defendant
had obtained a judgment against the plaintiff and, having goods of
the plaintiff in his possession, wrongfully refused to give them up,
and then issued execution on his judgment, and seized and sold the
goods, and applied the proceeds in satisfaction of the debt, it was
held that the plaintiff was entitled in trover to recover the full
value of the goods, and that the jury ought not to take into consid-
eration in mitigation of damages the fact that the goods had been
subsequently applied in satisfaction of the plaintiff’s debt to the
defendant.*

Sec. 521. Verdict by consent.

Where the defendant is willing to deliver up the chattels, the
verdict is generally entered by consent at the value of the thing,
but only 1s. to be levied upon its being given up.“ But this is
merely matter of arrangement between the parties; and if the sub-
ject-matter has been so injured as that justice would not be effected
by returning it, the verdict will be absolute for the entire value.*
In a case where equity would relieve the defendant against the ver-
dict, as where, in trover for title deeds, the whole value of the estate
has been given, the court will, with the plaintiff’s consent, order

'™Moon v. Raphael, 2 Bing. N. C. 4 Wintle v. Rudge, 5 Jur. 274.

815; per Trnpvat, C. J. 5 M’Leod ». M’Ghie, 2 Sco. N. R.

2Eivans vo. Lewis, 3 Dowl. 820. 605; 2M. & G. 326.

* Edmondson v. Nuttall, 17 C. B.
(N. 8.) 280; 384 L. J. C. P. 102,
508 TROVER.

satisfaction to be entered upon the defendant’s returning the deeds,
paying full costs of the action as between attorney and client, and
all other proceedings caused by his own wrongful act, and submit-
ting to such other terms as would be a full indemnity to the plain-
tiff!

Sec. 522. Reducing damages after verdict.

Even after trial and verdict, the court will exercise its equitable
power in reducing the damages, when any subsequent matter has
rendered it unjust that the whole amount should be recovered. A
verdict in trover for goods was *obtained against a party.
After verdict, and before the goods were removed from the
house in which they were, and for the rent of which the plaintiff
was liable, they were distrained on by the landlord; Trvpat, C. J.,
said, ‘The case falls within a principle well known and recognized
in Westminster Hall. The plaintiff has recovered damages in action
of tort; the defendant has in effect satisfied them pro tanto, and
he comes to us toallow this amount toward satisfying the judg-
ment. The parties are in the same situation as if the defendant had
gone to the plaintiff after the verdict, and paid him the sum dis-
trained for.’ .

[#356]

Sec. 523. Staying proceedings.

In some cases the court will stay proceedings without going to
trial, upon delivery of the thing claimed and payment of costs.
The rule is thus laid down in Fisher v. Prince’ “that where trover
is brought for a specific chattel, of an ascertained quantity and
quality, and unattended with any circumstances that can enhance the
damages above the real value, but that its real and ascertained value
must be the sole measure of the damage, there the specific thing
demanded may be brought into court. But where there is an
uncertainty either as to the quantity or quality of the thing de-
manded, or there is any tort accompanying it that may enhance the
damage above the real value of the thing, and there is no rule
whereby to estimate the additional value, there it shall not be
brought in.”* In one case of trover for a horse the court refused

1 Coombe v. Sansom, 1 Dow. & Ry. 4 And see Whitten v. Fuller, 2 W.

201. Bl, 902; Tucker ». Wright, 3 Bing.
? Plevin v. Henshall, 10 Bing. 24. 601; Gibson », Humphrey, 1 C. & M.
33 Burr. 1364, 544.
TRoveEr. 509

a rule to stay proceedings on delivering him up with costs, though
the application was made on an affidavit that his condition was
improved ; and they said Fisher v. Prince was no authority for the
rule asked.’ Probably the plaintiff sought damages for the deten-
tion beyond the mere value of the animal. But in such a case, as
where the action was a promissory note, said to be dishonored, the
court will only allow the plaintiff to proceed for actual damage, but
not for mere nominal damage for its detention.’

Sec. 524. Staying proceedings as to some articles where the claim is for
several.

Even where there are several things claimed, the court

[*357]
will make a rule asto any one of them, if the circumstances
relating to it come within the principle above stated. The terms
of the rule are, that on delivering up the articles in question, and
paying costs of the cause and the appearance up to that time, the
proceedings shall be stayed, if the plaintiff will accept of such
discharge of the action. If not, that the articles delivered up
shal] be struck out of the declaration, and the plaintiff be sub-
ject to costs unless he shall obtain a verdict for the remainder of
the goods claimed, or more than nominal damages for the detention
of those given up.°

Sec. 525. Damages for detention.

Substantial damages will be given for the detention of an article
which has fallen in value between the time it was taken and the
time it was returned. The action was detinue for railway scrip,
which was delivered up under an order in the above terms. The
plaintiff proceeded to trial, and proved that at the time of demand
the scrip-certificates were worth 3/. 5s. each, but only 17. at the time
of the delivery. The judge directed the jury that the true measure
of damage was the loss the plaintiff sustained by not having the
shares when demanded; and that they might, if they pleased,
measure that loss by the difference between the price at the time
of the refusai, and the price at the time when the certificates were
given up, and they found accordingly. This direction was held to

"Makinson v. Rawlinson, 9 Price, 3 Brunsdon»v. Austin, 1 Tidd’s Prac.,
460. 9th ed., 545; Earle v. Holderness, 4

®Moss 0. Thwaite, 1 Tidd’s Prac. Bing. 462; Peacock ». Nichols, 8 Dowl.
545, 9th ed. 367.
‘510 TROVER.

be correct on a writ of error.! So, in an action on the case
against a collector of customs, for refusing to sign a bill of entry
for corn, under a claim for duty, and detaining the same, it was
decided (also on error) that the measure of damages for the deten-
tion was the loss the plaintiff suffered by a fall in the price of
corn while his property was kept from him.” Neither of these
cases were in form trover, but the principle upon which dam-
ages for the detention of goods should be calculated is clearly the
same.

Sec. 526. Property changed by recovery in trover and satisfaction. Buck-
land v. Johnson. Brinsmead v. Harrison.

Before quitting this subject, it may be as well to remark that a
recovery in trover changes the property, and vests it in the defend-
[#3 58] ant.” Accordingly it was held to be a good plea to this *ac-

tion, that the plaintiff had previously recovered against a
third person for the conversion of the same goods, and that after this
recovery, and satisfaction in damages, the defendant in the former
action had sold them to the present defendant, which was the con-
version now complained of. There are two points, however, upon
which the authorities are at variance. The first is whether the
property is changed by the judgment before satisfaction, or only by
actual payment of the damages. The latter doctrine is laid down in
Jenkins,’ where it is said, “A in trespass against B for taking a
horse recovers damages; by this recovery, and execution done
thereon, the property in the horse is vested in B. Solutio preté
emptionis loco habetur.” And so it is stated by Hotroyn, J.,° and-
by Trvpat, C. J.,” that by a judgment in trover and satisfaction of
damages the property is changed. And this doctrine is cited as law

1 Williams ». Archer, 5C. B. 318.

* Barrow v. Arnaud, 8 Q. B. 595.

®* The rule is generally, although not
uniformly, otherwise in this country,
and in order to change the title the
judgment must be satisfied. Smith».
Alexander, 4 Sneed (Tenn.), 482 ; Oster-
hout v. Roberts, 8 Cow. (N. Y.) 43;
Cook v. Cook, 2 Brev. (8. C.) 3849;
Spivey ». Morris, 18 Ala, 254; Hepburn
v. Sewell, 5H. & J. (Md.) 211; Car-
lisle ». Burley, 8 Me. 250; Barb v, Fish,
8 Blackf. (Ind.) 481. The rule is other-
wise, however, in several of the States,

especially Michigan; Brady ». Whit-
ney, 24 Mich. 154; Kenyon v. Wood-
ruff, 33 id. 310; and South Carolina;
Rogers v. Moore, 1 Rice (8. C.), 60;
in which itis held that a judgment
forthe plaintiff at once vests the title
to the property in the defendant.

* Cooper v. Shepherd, 8 C. B. 266.

®° 4th Cent. Ca. 88.

° 3 B.& C.206; Rogers v. Moore, 1
Rice (8. C.), 60; Foreman v. Neilson, 2
Rich. Eq. (8. ©.) 287; Chartran 0.
Schmidt, 1 Rice (8. C.), 229.

"Cooper v. Shepherd, 3 C. B. 272.
TROVER. 511

in the notes to W. Saund. by its eminent editors... On the other
hand the contrary rule was maintained in a later case, where a plea
of judgment without satisfaction was held to be good.’ Jarvis, C.
J., after noticing the cases just cited, said, “But in Adams »v.
Broughton,’ itis laid down that the judgment, and not the payment
of the money recovered, changes the property, and the true rule
was laid down by Pargg, B., in King v. Hoare,‘ viz., ‘that that which
is uncertain is made certain by the judgment, and then the judg-
meut affords a higher remedy, and the right of action for trover is
merged in it.’ Precisely the same decision had been arrived at
long before, when in trover the defendant pleaded a former recovery
against H., who was taken in execution for the damages. It was
argued that execution without payment was no satisfaction ; but the
plea was held good, and Poruam, C. J., said, ‘If one hath judgment
to recover in trespass against one, and damages certain, although he
be not satisfied, yet he shall not *have a new action for the [#359]
same trespass. For the same reason, if one have cause of
action against two, and obtain judgment against the one, he shall
not have remedy against the other.’”* It became necessary for the
court of common pleas to choose between these conflicting authori-
ties in a recent case in which, in substance, the plaintiff having
recovered judgment in trover against one of two wrong-doers, which
judgment was unsatisfied, sued the other for keeping the gouds, and
so continuing the wrong. In a considered judgment the question
for decision was stated to be, whether judgment in trover without
satisfaction changes the property so as to vest it in the defendant
from the time of the judgment, or whether such recovery operates as
a mere assessment of the value, on payment of which the property
in the goods vests in the defendant. It was pointed out that Adams
v. Broughton seemed to be unsatisfactorily reported in Strange, and
that in Buckland v. Johnson the point did not really arise; and the
opinion of the court was expressed, that good sense and abundant
authority showed that mere recovery without satisfaction has not the
12 W.Saund. 47, cc.n.z.6th ed. In 2 Buckland ». Johnson, 23 L. J.C. P.
2 Notes to Saunders, at p. 134 (f), 204; 15 C.B.145.
Sir E.V. Williams has introduced the #2 Stra. 1078.
words ‘‘it appears not to be material 413 M. & W. 494.
that the recovery should be followed Brown v. Wootton, Cro, Jac. 73.

by satisfaction; Buckland o. John-
son.”
512 TROVER.

effect of changing the property. Judgment was accordingly given
for the plaintiff.

Sec. 527. Effect of a judgment for less than the full value of the goods.

The second doubt is as to the effect of a judgment in trover for
less than the full value of the goods. It is expressly stated by Hot-
RoypD, J., and Lrrruepars, J.’, that an action of trover is no bar
unless the full amount has been recovered. And so it was decided
in an old case, where the defendant, who was sued in trover for
eighty-nine sheep, pleaded a former recovery against other defend-
ants in an action quare ceperunt et abduxerunt oves, and damages
2d.; there, however, the judgment went on the ground that the
verdict had not been for the value of the sheep at all, but only for
the damage by taking and driving them: and with this view, YEL-
veERTON, J., disagreed.* *The same point arose incidentally
in the case above,‘ though it was not necessary to decide it.
The action was for money had and received. Plea, that the money
was the proceeds of certain goods of the plaintiff which had been
converted, and in respect of which plaintiff had already sued A in
trover, and recovered 1007. It appears that defendant and A had
converted the goods by selling them, but that defendant alone had
received the proceeds of the sale, which were 1507. The plaintiff
claimed at all events to recover the difference between his verdict
and the amount for which the goods had sold. It was held he could
not, and Jervis, C. J., said, “The fallacy arises from forgetting,
that by the judgment in the action of trover the property in the
goods was changed from the time of the conversion,* and that they
then became the goods of A; and that when the defendant received

[*360]

1 Brinsmead v. Harrison, L. R., 6 C.
P. 584; 40 L. J.C. P. 281. This case
supports the decision in King 0. Hoare,
that judgment against one. of two tort-
feasors isa bar to an action against
the other for the same cause of action,
although the judgment be unsatisfied ;
and the judgment was affirmed on
appeal on this point, L. R., 7.0. P.
547; 41 L. J.C. P. 190. An interloc-
utory judgment signed for want of a
plea had previously been held not to
pass the property; Marston ». Phillips,
12W.R.8; 9L. T. (N. 8.) 289. The de-
cision in Brinsmead v, Harrison was

lately affirmed and followed in Ex
parte Drake, 5 Ch. D. 866, where it
was held that a judgment for plaintiff
in detinue did not change the prop-
erty in the detained chattel until sat-
isfaction of the value found by the
judgment, although the satisfaction
had been prevented by the bankruptcy
of the defendant.

°3 B.& C. 207.

Lacon »v. Barnard, Cro. Car. 35;
Field v. Jellicus, 3 Lev. 124.

* Buckland v. Johnson, ubi supra.

5 See 6M. & G. 640, n.
TRoVER: 513

the proceeds of the sale, he received the proceeds of the sale of A’s
goods.” Mauux, J., said, “In an action of trover, the plaintiff
may not always (certainly not always in trespass) recover the full
value of his goods. What might be the result if it were shown
here, which it is not, that the plaintiff had not recovered the value
in the former action, I say nothing; but in the present case, we
must take it, that the plaintiff having his election either to sue in
trover for a conversion, or in an action for money had and received,
elected to sue in trover, and recovered the full value from A.” It
will be observed that the judgment of the court is here put on two
d:fferent grounds, each of which gets rid of the point in question.
Jervis, OC. J., held, that the proceeds never were money had and
received to the plaintiff's use, as the effect of the judgment against
A, relating back to the moment of the sale, made them his goods at
that instant. If so the defendant was not liable at all. Mavts, J.,
and CrrsswELL, J., held, that by the election to sue in trover,
the plaintiff threw himself upon the verdict of the jury as to what
the real value of the property was. They might have given more
than it sold for, and they happened to give less. It was no longer
in his power to raise the question. Indeed, except in some rare
cases, it is hard to see how the *question could arise in arg 61]
shape fit for discussion. It may be presumed that the judge
would always direct the jury to give the value of the article, or of
the plaintiff’s interest in it. The verdict of the jury must be taken
to be their finding as to its value. A clear error might be ground
for a new trial, but how could a plaintiff, while acquiescing in the
verdict, say that it was not what it professed to be?

Sec. 528. Detinue.

In detinue the judgment is to recover the thing itself and dama-
ges for its detention; or if it cannot be returned, then its value.’
It was formerly in the option of the defendant whether he would

1 Peters ». Heyward, Cro. Jac. 682;
Paler ». Hardyman, Yelv.71. Judg-
ment should be in the alternative,
either for the return of the specific
article or its value in money, and a
judgment entered absolutely for the
return of the article, or for its value,
is erroneous. Brown 2.. Brown, 5 Ala,
508. But where the jury do not find

65

damages, it is held in Kentucky, that
a judgment for the return of the prop-
erty is good. Daniel ». Prather, 1
Bibb (Ky.), 484; and even though
the property has been restored to him
the plaintiff may have judgment for
damages and costs. Merritt o. Mer-
ritt, Mart. (N. C.) 18.
514 TROVER.

return the thing, or pay its value.1 And there was no common-law
process to compel him to give it up.?. But such a power has been
given by statute 17 & 18 Vict., ch. 125, § 78.°. Where there are
several things demanded the jury ought to find the value of each
separately.‘ The rules as to assessing the value of the goods, dama-
ges for their detention, and staying proceedings upon their delivery,
are just the same as in trover.°

Sec. 529. When property cannot be returned.

Where the verdict cannot be for a return of the goods, on account
of their destruction or previous re-delivery, it will be absolute, in
the former case, for their value and damages; in the latter case, for
damages only. In detinue for charters which have been burnt, the
plaintiff shall recover the whole value of the land." And it isa
good plea to the further maintenance of the action, that the goods
were delivered to and accepted by plaintiff since action, and pay-
ment into court of 1s. damages for detention.” And where the
action was for scrip certificates which had fallen in value between
the time of demand and re-delivery before verdict, the judge left it
to the jury to find, as the measure of damages for detention, the
diminished price of the scrip.° But the plaintiff must give evidence
[#362] of the value, and where no such evidence has been *given,

if the jury give a substantial sum, the court will, on leave
reserved, reduce it to a nominal one.’

Sec. 530. When property vests in defendant.

On account of the alternative character of a judgment in detinue,
the property in the goods detained does not vest in the defendant,
till the plaintiff has signified his election to abandon it by issuing
execution for the value, instead of resorting to a distringas ad
deliberandum.”

1 Per Frowixe, C. J., Keilw. 64, b; 6 8 Viner’s Abr. 39, Detinue, E.

Phillips ». Jones, 15 Q. B. 867. 7 Crossfield v. Such, 8 Ex, 159.
? Walker». Needham, 4 Sco. N.R. = ® Williams o, Archer, 5 C. B. 318.
222. ® Anderson 2. Passman, 7 C. & P.
8 See Chilton ». Carrington, 15 C.B. 193. Even on default the damages
780; 24L. J. C. P. 78. must be assessed, as the default only

48 Vin. Abr. 39, Detinue, D. 7; admits the property to be in the plain-
Pawly v. Holly, 2 W. Bl. 853. As to tiff, but not the value to be as alleged
the effect of not assessing the value, by him. Thompson v. Thompson, 7
see post, tit. Writ of Inquiry. B. Monr. (Ky.) 421.

5 See ante, pp. 487-509; Phillips o. 6M. & G. 640, n.

Hayward, 3 Dowl. 362.
Trespass To Goons. 515

CHAPTER XXI.

TRESPASS TO GOODS.

Src. 531. Damages in trespass are value of goods.
532. Special damages.
533. Interpleader.
534. Collision at sea. Demurrage.
535. Damages for the manner of the taking.
536. Actions against several. Actions by several.
537. Mitigation of damages.
538. Repayment of produce of goods taken.
539. Evidence of collateral matter is not admissible.
540. Actions against sheriff.
541. Damages when goods have been seized by breaking open outer
door.
542. Breaking outer door of an out-house.
543. Seizing goods out of jurisdiction.
544, Payment of money to recover.
545. Damages where plaintiff must have sold.
546. Payments made by sheriff.
547. Cases of doubt as to right of property.

Sec. 531. Damages in trespass are value of goods.

In an action for trespass to goods, the damages in general are
measured. by the value of the goods, or the amount of injury done
to them. These have been already sufficiently discussed,’ and
indeed seldom present any difficulty. In the case of fixtures, how-
ever, the mode of valuation may differ materially, according to the
form in which the action is brought. In trover, as we have seen,
the plaintiff can only recover their value as chattels.’ But in tres-
pass their actual value as fixtures may be given. S. deposited the
lease of his house with plaintiff as security for.a loan, and made an
assignment of fixtures, undertaking either to mortgage the lease to
the plaintiff with power of sale, or to allow him to sell either fix-
tures, or lease and fixtures on the premises, without a mortgage. S.
became a bankrupt, and his assignees in bankruptcy seized the fix-

' Ante, p. 487, et seq. 2 Clarke v. Holford, 2 C. & K. 540;
ante, p. 497.
516 Trespass to Goops.

tures, and sold them by auction for 367. It appeared that this was a
fair price for them when severed, but that they would have sold
for 802., if valued as between incoming and outgoing tenant. It
was held that the plaintiff was entitled to the latter amount, as it
was not to be presumed that he would not have sold them to the
eventual purchaser of the term, which in case of non-payment he
was entitled to do.

Sec. 532. Special damage.

Special damage resulting from the immediate loss or injury may
also be allowed for, if not of too remote a nature. In an action for
injury to the plaintiffs horse by a collision, it was held that he might
recover the keep of the horse at the farrier’s while it was being
cured, the farrier’s bill, and the difference between the value of the

horse before and after the accident.
hire of another horse *which plaintiff had been obliged to
have while his own was laid up.’

[#363]

But he could not recover the

In one case a curious series of disasters was held to be chargeable

upon the defendant.

1 Thompson v. Pettitt, 10 Q. B. 103;
Moore v. Drinkwater, 1 F. & F. 134.
Even where the goods are fraudulently
taken, the measure of damages is their
value, and the plaintiff cannot recover
in addition as a distinct item, the prof-
its he would have made out of them.
Campbell » Woodworth, 26 Barb. (N.
Y.) 648; Schindel v. Schindel, 12 Md.
108; Butler v. Collins, 12 Cal. 457;
Cushing v. Longfellow, 26 Me. 306.
Where a landlord entered and turned
out the tenant without right, it was
held that the tenant might recover as
damages, the value of the crops which
he had planted, in this case, vegetables
and grape-vines that were planted by
him. Fox ». Brissay, 15 Cal. 223.

* Hughes ». Quentin, 8C. & P.703.
See Barrow v. Arnaud, 8 Q. B.595;
ante, p. 509.

In an action for injuries to a horse,
sustained in consequence of a defect
in a highway, the plaintiff is entitled
to recover the diminution, occasioned
by the injury, in the market value of
the horse at the commencement of the
action, and, in addition, such sums ag
the plaintiff has paid out in reasonable

His carriage was driven against the wheel of

attempts to cure him, with a reason-
able compensation for his own services
in attempting to cure him, and a rea-
sonable sum as compensation for the
loss of the use of the horse while under
such treatment; provided that the
whole damages allowed do not exceed
the value of the horse. Gillett 0.
Western Railroad Corp., 8 Allen
(Mass.), 560.

In Bucknam v. Nash, 12 Me. 474,
in an action of trespass for taking the
plaintiff's logs, he was permitted to re-
cover the profits he would have made
from sawing them up and their appre-
ciation in value in this way; and in
Allred ». Bray, 41 Mo. 484, in an ac-
tion for taking and carrying away
the plaintiff's goods, he was permitted
to recover the damage sustained by
him by reason of having his business
broken up; but in Connecticut, in a
similar case, it was held that a recov-
ery for damages by reason of the
breaking up of the plaintiff’s business,
unless the taking is shown to have
been malicious, Oviatt »v. Pond, 29
Conn, 479,
Trespass ro Goops. 517

the plaintiff's chaise; the collision threw a person who was in the
chaise upon the dashing-board ; the dashing-board fell on the back '
of the horse; the horse kicked in consequence, and by kicking in-
jured the chaise. It was held that the plaintiff might recover for
the whole of the loss so sustained.’

Sec. 533. Interpleader.

An execution creditor has been held not to be liable to a person
whose goods have been wrongfully taken in execution, for any
damage sustained by the latter in consequence of their sale under
an interpleader order. The execution creditor is responsible for
all damage up to the time of the interpleader order, but what is
done under the order is the consequence of the judge’s decision
upon the interpleader summons, and is not the proximate conse-
quence of the seizure.”

Sec. 534, Collision at sea. Demurrage.

When a vessei, having been run down, subsequently becomes
unmanageable, and gets upon a bank, and is lost, the presumption
of law is, that her eventual loss is attributable to the effects of the
collision, and not to the mismanagement of the crew. Her whole
value consequently would be the measure of damages.’ Where,
however, the full value of the vessel is given as compensation by a
court of admiralty, the plaintiff cannot recover any thing in the
nature of demurrage for loss of the employment of his vessel, or his
own earnings, in consequence of the collision... And even where
the admiralty courts allow damages for the detention of a vessel
while under repair, the onus of proving the loss so incurred rests
upon the plaintiffs. They must prove that the vessel would have
earned freight, and that such freight was lost by the collision.
When, for example, a fishing voyage is lost, or a vessel would have
*been beneficially employed, such damages will be given,
but not otherwise.°

I may observe that in the admiralty courts, where a collision has

[*364]

1 Gilbertson v. Richardson, 5 C. B. of the crew, see The Flying Fish, ante,
502.

. 94.
? Walker v. Olding, 1H. & C. 621; oy The Columbus, 3 Rob. Adm, 158.
32 L. J. Ex. 142. 5 The Clarence, 3 Rob. Adm. 283;
* The Mellona, 3 Rob. Adm.7. As Starof India, 1 P. D. 466.
to loss caused by mismanagement

66
[#365]

518 Trespass To Goons.

occurred, and both parties are equally to blame, the rule is to divide
the damages equally between them.' 3

The cases in which a plaintifi’s own negligence may destroy his
right to recover for damage done, especially in case of collisions,
have been discussed so fully in treating of remoteness of damage,
that I need only refer the reader tothem.? The liability of ship-
owners for any loss or damage to any other ship, or to the goods
on board of any other ship, by reason of the improper navigation
of their own vessel, is limited to an aggregate amount not ex-
ceeding 8. for each ton of the ship’s tonnage, with’ interest from
the date of the collision.* This act extends to damage caused by
collision.”

As to cases in which the costs of former actions may be recovered,
the reader is referred to the decisions cited below, and to a former
chapter in which they are discussed.°

Sec. 536. Damages for the manner of the taking.

There is one distinction between trespass and trover, which ma-
terially affects the question of damages. It is, that as the gist of
the former action is the wrongful taking, while that of the latter is
the wrongful conversion, damages may be recovered in trespass on
account of a stage of proceedings prior to that which can be noticed
in trover. The manner in which the property was seized may be
the source of substantial damages, in addition to any which could
be given in respect of their detention. Accordingly where the de-
fendant wrongfully seized goods, and placed a man in possession of
them for several days, but allowed the plaintiff to make free use of
them, it was *decided that the owner might recover sub-
stantial damages.’ In such a case, in trover, only nominal

‘Vaux v. Sheffer, 8 Moo. P. C. C.
75; The Milan, 31 L. J. Adm. 105.
The innocent owner of cargo, accord-
ing to that case, is entitled to recover
a moiety of his damage from the owner
of each ship.

2 See ante, pp. 94-106.

3 25 & 26 Vict. ch. 68, § 54; ante, p.
405. The Northumbria, L. R., 3 Ad.
& Ecc. 6; Smith v. Kirby, 1 Q. B. D.
181. By the ancient law of the sea,
there is no limitation to the liability
of a wrong-doer. The Wild Ranger,
82 L. J. Adm. 49.

4 Abb. Ship. 240, 8th ed., 616, 11th
ed.; 2 B. & A. 15. See ante, p. 405.
And it has operation on the high seas,
and applies both to British and foreign
ships. The Amalia, 82L. J. Adm. 191;-
ante, p. 406.

° Holloway v. Turner, 6 Q. B. 928;
Tindall v. Bell, 11 M. & W. 228; Loton
2. Devereux, 3B. & Ad. 348.

° Bayliss o. Fisher, 7 Bing. 153;
Mudun Doss v. Gokul Doss, 14 W. R.
590; 14 L. T. (WN. 8.) 646, P. C.
Trespass To Goons. 519

damages could have been given for the conversion. Andso, in an
action for seizing goods under an unfounded claim for a debt, dam-
ages may be given beyond the value of the goods, not only for the
breaking and entering, but also on account of the false pretense of a
legal claim, and the annoyance and disturbance to the plaintiff in
carrying on his business, and the belief caused of his insolvency, in
consequence of which his lodgers left him.’

Sec. 536. Actions against several. Actions by several.

Where, however, the action is against two jointly, nothing can be
given in evidence as special damage which is not the joint act of
both. The true criterion of damage is the whole injury which the
plaintiff has sustained from the joint act. Therefore the malignant
motive of one party cannot be made a ground of aggravation of
damages against the other party, who was altogether free from any
improper motive. In such a case the plaintiff ought to select the
party against whom he means to get aggravated damage.” Where,
however, the same motive actuated both, I apprehend there could
be no reason against offering evidence of it.”

On the same principle, in an action by several, no evidence can
be received, and no damages allowed in respect of any injury to
one which was not also an injury to the others."

Sec. 537. Mitigation of damages.

In mitigation of damages, the defendant may of course show any
thing which tends to diminish the value of the thing affected, or the
amount .of loss incurred, or may negative the malicious motive
ascribed to him."

Accordingly, in trespass for destroying a picture, which turned
out to be a scandalous libel upon the defendant and his sister, and
which was publicly exhibited, Lord *E:tenzoroves told the [#366]
jury that if it was a libel upon the persons introduced into

1 Brewer v. Dew, 11 M. & W. 625.

? Clark ». Newsam, 1 Ex. 181, 139.
It is by no means clear that this will
continue to be the rule under the pres-
ent procedure. See post, pp. 404 and
494.

3 As to the admissibility of evidence
of motive in actions of tort, see ante,
p. 56, et seq.

+ Barratt ». Collins, 10 Moo. 446.

5 He may also show that the plaintiff

is not the owner of the property, and
that he took it by the permission of
the owner, or that it has since gone
into the possession of the true owner.
Criner v. Pike, 2 Head (Tenn.), 398.
Compensation for the loss is the meas-
ure of the plaintiff’s recovery; con-
sequently if he only had a lien upon
the property, the extent of his recov-
ery is the amount of his lien, Outcalt
v. Durling, 25 N. J. L. 448.-
520 Trespass to Goops.

it, the law could not consider it valuable as a picture, and that in
assessing damages they must not consider it asa work of art, but
must award the plaintiff only the value of the canvas and paint,
which formed its component parts.’ And so the defendant may
show that the plaintiff had not an interest in the goods to their full
value, and that the residue of the interest was in himself. In such
a case the plaintiff can only recover to the extent of his own inter-
est.” But this would be no defense, even in mitigation of damages,
when the residue of interest was not in the defendant, but some
third person.’

Sec. 538. Repayment of produce of goods taken.

It has been decided that in trespass for taking goods, the defend-
ant cannot, even in mitigation of damages, offer evidence to show a
repayment by him, after action brought, of money produced by the
sale of the goods. Lord Drnman said, “The rights of parties at
trial are the same as they were at the commencement of the suit, or
if they are changed, a plea puzs darrein continuance ought to place
the new facts on the record. It is important to uphold the principle,
that a party is entitled to recover by way of damage all that. at the
commencement of the suit he has lost through the wrongful act of
the defendant.”* This decision is certainly opposed to natural jus-
tice, and it seems equally opposed to the analogy of other actions.

' Du Bost v. Beresford, 2 Camp. 511.

2 Brierly v. Kendall, 17 Q. B. 937;
Toms v. Wilson, 32 L. J. Q. B. 382,
in Ex Ch.; ante, p. 503.

3 Heydon’s Case, 13 Rep. 69; Story
on Bailm., § 852.

4 Rundle v. Little, 6 Q. B. 174.

In Smith ». McCall, 48 Vt. 422, the
defendant had taken plaintiff's prop-
erty on an execution against another,
and in trespass for the property, de-
fendant’s evidence tended to show
that plaintiff agreed that, if defendant
would return the property to the place
from which he took it, that should
settle plaintiff's claim for damages;
that defendant began to return the
property accordingly, but, before it
was fully returned, plaintiff told him
he should claim damages for the tak-
‘ ing, but to put the property where he
found it, which he did, and plaintiff
used it. The court held that it was

competent for plaintiff to repudiate
the agreement, as the testimony tended
to show, and that if defendant under-
stood that plaintiff declined to receive
the property in full, but insisted upon
his damages also, and with this knowl-
edge chose to return it and discharge
his liability thus far, such return
would not have the effect to discharge
plaintiff's claim for damages,

In Montgomery ». Wilson, 48 id.
616, the defendants were trespassers
in taking and driving away plaintiff's
cattle; but the cattle were taken from
defendants’ possession on writs of
attachment against plaintiff, and sub-
sequently sold, and the avails thereof
applied on executions against plaintiff.
It was held that defendants were liable
for damages only up to the time of the
attachment, irrespective of whether
the officer proceeded legally with the
property after the attachment or not.
Trespass To Goons. 521

In trover, as we have seen, a re-delivery of the goods, even after
action brought, will authorize the jury to give only nominal dam-
ages, unless actual loss has been caused by the detention or other-
wise.’ So, in detinue, where the goods have been returned after the
commencement of the suit, the judgment is only for the damages
caused by the detention.” In trespass, no doubt, an additional ele-
ment enters into the verdict. It ought to comprise damages for the
manner of the taking, for the value of the thing taken, and for the
loss incurred by its being taken. But when the *second £367]
item has been already paid for, why should it be paid for
again in trespass, any more than in trover ordetinue? It is difficult
to see how any plea puis darrein continuance could have been
framed, which would not have been bad on general demurrer, unless
it had alleged that the money was paid and accepted in full satisfac-
tion of all the causes of action, which it obviously was not. Any
thing short of this would have been merely a plea to the damages,
and have left the taking unanswered.* No doubt the defendant,
instead of paying the money to the plaintiff, might have paid it
into court. But such a course would clearly have been less beneficial
to the plaintiff, since it would have forced him to stop his action,
or continue it at the risk of losing his costs ;* it is hard, then, tosee
why it should be so much more beneficial to the defendant. Nor
is this like an attempt to surprise the plaintiff by setting up a new
defense, such as title in another, because if true at all it must be
perfectly known tohim. Nor, finally, does it come within the. rule
which requires payment after action to be pleaded, because it would
have been no defense if it had been pleaded.°

In the same case a question was raised, whether an attorney, sued
in trespass for seizing goods, might give in evidence a judgment
under which he had acted in issuing a ft. fa. No decision seems to
have been given upon this point. On principle it would seem to be
admissible in mitigation of damages, as showing the character of the
act, and the absence of all malicious motive.

Sec. 539. Etvidence of collateral matter is not admissible.
Matter of a merely collateral nature cannot be given in reduction

! Moon v. Raphael, 2 Bing. N. C. 315. 4Rumbelow v. Whalley, 16 Q. B.

? Williams ». Archer, 5 C. B. 318. 397.

* 1 W. Saund. 28, a,n.3; 1 Wms, . ® See, too, per Lord Anineur, C. B.,
Notes to Saund. 23, n. (1). 11M. & W. 744.

66
529 Trespass To Goons.

of damages. For instance, where the action was for injury caused
by a collision at sea, the defendant was not allowed to deduct from
the amount of loss proved any money paid to the plaintiff by his
insurers in respect of the same damage. This would be to make
the wrong-doer pay nothing, and take all the benefit of the insurance
without the burden of the premium.! On the same principle, in
trespass for taking away goods sold by defendant to plaintiff, and
not paid *for according to contract, the plaintiff is entitled
to their full value. The jury cannot take into consideration
the debt due in respect of them from the plaintiff to the defendant,
because the retaking by the latter would be no answer to an action
by him for their price.*

[#368]

Sec. 540. Actions against sheriff.

This is the most proper place for noticing actions against the
sheriff by the debtor, or supposed debtor, for an unlawful execution.
In such cases the sheriff appears as a wrong-doer, and damages
against him are regulated on much the same principles as against
other persons. The rule was discussed lately in the court of queen’s
. bench under the following circumstances. The action was trespass
against the sheriff and his bailiff for breaking the plaintiff's house,
and seizing his goods; it appeared that a former execution for the
same debt 2707. had been put in, and the debt had been paid to a
person at the bailiff’s office. He never paid it over, and the execu-
tion creditor never received it. Upon this account execution was
put in by the same sheriff, which was the ground of action. The
goods were not sold; but a man remained in possession several days.
The jury gave a verdict for 4002. It was held that these damages
were not excessive against the sheriff. Per Cur. “If the second
execution had been put in merely by mistake, or witha view bona
Jide to try any question which might fairly have been tried between
the sheriff and the plaintiff, we should have thought the damages
excessive as against the sheriff, as they greatly exceeded the pecu-
niary loss sustained. Sheriffs acting bona fide are entitled to and
will always have the protection of the court. The jury appear to
have thought that this was a case in which the process of the court

1 Yates », Whyte, 4 Bing. N. C.272. Page o. Cowasjee, L. R., 1 P. C. App.
* Gillard. Brittan, 8M. & W. 575; 127. See ante, p. 504.
Trespass to Goons. 523

had been abused, and a gross outrage was committed under the forms
of law. We cannotsay that they were wrong in coming to this con-
clusion, and if they were right, we should not be justified in inter-
fering in behalf of the sheriff with the amount of compensation
which they have awarded in the exercise of their constitutional

functions.” !

Sec. 541. Damages when goods have been seized by breaking open outer door.

*A question has arisen several times as to the amount of
damages, where the sheriff has taken goods under a regular
ft. fa., but has been guilty of such an irregularity in executing it as
makes him a trespasser a initio. It islaid down in Semayne’s case, *
that the sheriff cannot break the defendant’s house by force of a
fi. fa., but he is a trespasser by the breaking, and yet the execution
which he then doth in the house is good. If this be so, damages
against him ought only to be for the breaking, and not for the seizure.
On the other hand, there seems to be an almost insuperable difficulty
in the way of framing any plea which shall not leave the taking
without justification, and, unless it can be justified, nothing short of
entire damages can, it seems, be given. It is settled that the
door being open is a condition precedent to executing the writ
in the dwelling-house and that the averment is material. There-
fore when in trespass for breaking the plaintiff's house and
arresting him therein, the defendant pleaded, except as to the
breaking, an arrest under a ca. sa., the door being open, and

[#369]

1 Gregory v. Cotterell, 1 E. & B. 360;
22 L. J. Q. B. 217. It was decided in
this case in the exchequer chamber that
the sheriff is responsible not only for
the wrongful acts of his officers, but for
those of persons employed by them, if
done by color of the warrant; 5 EH. &
B. 571; 25 L. J. Q. B. 33. The high
‘bailiff of a county court is in a similar
position. Burton v. Le Gros, 34 id.
91.

In an action of trespass, the ques-
tion of whether it was wantonly or
willfully committed, is important to be
considered in measuring the damages,
Where the wrong is wanton or willful,
the jury are authorized to give an
amount of damages beyond the actual
injury sustained, as a punishment, and

preventive damages

to preserve the public tranquillity. But
when the wrong-doer acts in good
faith, with honest intentions, and with
prudence and proper caution, and he
invades the rights of others, so as to
render himself liable to the action,
are improper.
Hawk ». Ridgway, 33 ‘Ill. 473.

It may always be shown that the de-
fendant honestly believed that he
owned the goods, or had aright to
take them, not because such evidence
has any bearing upon the question of
actual damage, but as affecting the
plaintiff's right to exemplary damages.
Hillman v. Baumbach, 21 Tex. 208.

25 Rep. 93, a; 1 Sm. L. ©. 111, 7th
ed.
524 Trespass To Goons.

this averment was traversed with success, it was held that dama-
ges might be given not only for the breaking and entering, but
also for the arrest.1 This, however, was a case of personal arrest,
and in a later instance Parks, B., asked, “whether there was any
authority for saying that the same doctrine applied to an execution
against goods?” * There is an exactly similar case; the action was
breaking and entering plaintiff’s house, seizing his goods and com-
pelling him to pay asum of money to withdraw from possession.
The defendant justified under a writ of fi. fa., the outer door being
at the time open. The jury found that it was shut, and gave 720/.,
observing that that sum was meant to include 2202. paid by the plain-
tiff, under protest, to induce the defendant to withdraw the execution.
A motion was made to reduce the damages, on the ground that the
execution was valid, though the entry was a trespass,*and there-
fore the amount of the levy ought not to have been given.
The court, in giving judgment, after observing that the only plea of
justification under the writ of 7. fa. was onew hich alleged that the
defendant entered for the purpose of making a levy, the outer door
being open, and that this allegation was found against them, as well as
the plea of not guilty, proceeded to say, “The defendants therefore
could not avail themselves of the writ of f. fa. under the plea of
the general issue, and were upon the state of the record without
defense in regard to the amount exacted to induce them to withdraw ;
the jury were warranted in including the amount so exacted in dama-
ges. The state of the record before-mentioned renders it unneces-
sary to consider how far, and to what extent, a levy under a writ of
ji. fa. can be justified, where properly pleaded, when the possession
of the goods has been illegally obtained.”* When the question
next arises we may expect some phenomenon of special pleading to
meet the possibility so cautiously hinted at. Probably the real import-
ance of the doctrine above stated will be felt when the action is not
against the sheriff or his bailiffs, but against the execution creditor,
for the proceeds of the sale. Should he be successful in separating
himself from any connection with the unlawful entry, he may be
held entitled to retain the goods, on the ground that the execution

[*370]

‘1 Kerbey v. Denby, 1M. & W. 336. 8 Brunswick ». Slowman, 8 C. B.
° Percival v. Stamp, 9 Ex, 167, 170; 317, 330.
23 L. J. Ex. 25.
Trespass To Goons. 525

was valid, and that he cannot be put in a worse position on account of
improper conduct which he did not sanction, and which was not the
act of his agent, but of a public officer obeying the mandate of a
court of justice.’

Seo. 542. Breaking outer door of an out-house,

I may observe that the outer door of an out-house may be broken
open for the purpose of executing a ji. fa.,” but notin making a
distress. The cases were reconciled by Lord Campset, C. J., on
the ground that a distinction may reasonably be made between the
powers of an officer acting in *execution of legal process, [#37 1)
and the powers of a private individual, who takes the law
into his hands, and for his own purposes.‘

Sec. 543. Seizing goods out of jurisdiction.

Where a ft. fa. has been executed in a place where the court had
no authority, as for instance, out of the jurisdiction of the court, the
measure of damages zs the whole value of the goods seized, and not
the amount of injury actually sustained. To admit the latter mode
of estimating damages would be, in effect, allowing the illegal pro-
ceeding to stand good.°

Sec. 544. Payment of money to recover.

When, after a wrongful seizure by the sheriff, the goods are taken’
from him by another wrong-doer, from whom the right owner can
only obtain them by payment, he may, in an action against the
sheriff, recover as special damage the money necessary so paid.”
And on the same principle the sheriff is liable to all the costs of an
illegal arrest, and not the original plaintiff, unless he was privy
to it.’

Sec. 545. Damages where plaintiff must have sold.
We have before observed ° that in trover by a bankrupt’s assign-

See 7 H. IV, ch. 35; Com. Dig. 416 Q. B. 257. Both in the case

Trespass, C. 1; 4 Inst. 317; Robinson
». Vaughton, 8 C. & P. 255; Wilson ».
Tumman, 6 M. & G. 236; Lyons ».
Martin, 8 A. & EH. 512; Freeman >.
Rosher, 18 Q. B. 780; Smith v. Hol-
brooke, 9 Ir. L. R. 155.

2 Penton v. Browne, 1 Sid. 186.

39 Vin. Abr. 128, Distress (HE. 2),
pl. 6; Brown »v. Glen, 16 Q. B. 254.

of distress and execution, a bailiff may
break open the door to retake posses-
sion if there has been no abandonment.
Bannister v. Hyde, 2 EH. & H. 627; 29
L. J. Q. B. 141.

5 Sowell ». Champion, 6 A. & E. 407.

5 Keene v. Dilke, 4 Ex. 388.

7, Anon. 1 Chit. 580.

8 Ante, p. 492.
526 Trespass TU Goops.

ees, who would themselves have had to sell, the jury seldom give
greater damages than the amount at which the goods actually sold ;!
and even may allow the sheriff’s expenses, if there were no circum-
stances making a sale by him more unfavorable to them than if it
had not taken place.” But where the plaintiff is himself the owner
of the goods, and sues in trespass, the amount of damages is entirely
for the jury, and they are not limited to the amount for which the
goods sold, though he had himself intended to sell them, and the
sale was conducted by the auctioneer whom he had commissioned
for that purpose. *

Sec. 546. Payments made by sheriff.

When in an action against the sheriff for seizing goods, evidence
was offered in reduction of damages, that the sheriff had made cer-
[#379] tain payments on account of rent and executions, *which it

was admitted he was bound to satisfy, the court considered it
doubtful whether such evidence was in general admissible. In the
particular instance, however, it was allowed, as the plaintiffs had in
their own notice of demand expressly excepted the sums in question.‘

Sec. 547. Cases of doubt as to right of property.

When there is a doubt respecting the property of goods which
the sheriff is directed to seize, he may summon a jury, in the nature
of an inquest on office, to satisfy himself whether the goods belong
to the debtor or not. Their verdict does not bind the rights of the
parties, but it will go in mitigation of damages, if they find that the
goods are those of the debtor, and it should happen that they are
not.” In general, however, the modern remedy by interpleader,
under 1 & 2 Wm. IV, ch. 58, § 6, will be found more effectual.

1 Whitehouse v. Atkinson, 3 C. & P. 4Goldsmid ». Raphael, 3 Sco. 385.

344. 5 Dalton, Sheriff, 146; Gilb. Execu-
2 Clark v. Nicholson, 6 C. & P. 712; tion, 21; 4 T. R. 688; Roberts v.
1C.M. &R. 724, 8. C. Thomas, 6 T. R. 88.

8 Lockley »v. Pye, 8 M. & W. 133,
Repievin. 527

CHAPTER XXII.

REPLEVIN.

Seo. 548. Damages in replevin.
549. Effect of recovery.
550. Verdict for defendant.
551. At common law.
552. By statutes of Henry VII.
553. By statute Car. II.
554. Replevin for poor-rates,
555. Illegal distress. Form of action where an irregularity has been
committed in distressing for rent.
556. Action for an excessive distress.
557. Irregularity in distraining corn or hay, or growing crops.
558. Effect of tender.
559. Amount of damages.
560. Irregularity does not make sale void.
561. Selling without appraisement.
562. Other irregularities.
563. Driving cattle into another county.
564. Cases to which 11 Geo. TI, ch. 19, § 19, does not apply.
565. Effect of a tender. :
566. What makes a party a trespasser ab initio.
567. Trespass ab initio as to part of the distress.
568. Thing distrainable conditionally.

Sec. 548. Damages in replevin. Verdict for plaintiff.

The action of replevin is an anomalous one, in this respect, that
both plaintiff and defendant are actors in the suit. In fact, it con-
sists of two cross actions, in which one party claims damages for
having his goods seized, while the other party claims satisfaction for
some demand out of which the seizure arose. One result of this
peculiarity is, that either party may obtain damages." .

Should a verdict be found for the plaintiff, the jury assess the
damages as in an ordinary action of trespass. Unless special dam-
age is laid, they are generally only costs of the replevin bond, and

1 Money can now be paid into court an avowry; C. L. P. Act, 1860, 23.
by a plaintiff in replevin, in answer to & 24 Vict., ch. 126, § 23.
528 ReEpPLeEvVIN.

in practice were, before 19 & 20 Vict., ch. 108, always assessed at
21. 2s. in London, Middlesex, York, and some other places; 20. 10s.
elsewhere.' They now depend on the amount distrained for.’ These
are all he is in fairness entitled to, as he has already had given back
to him possession of the goods distrained.

Sec. 549. Efffect of recovery.

[#373] *A recovery in replevin is a bar to any action for further
damages arising from the taking away of the goods, since

all such damages might have been, and ought to have been, recov-

ered in the action of replevin.’

Sec. 550. Verdict for defendant.

Should the defendant be successful, the case requires more con-
sideration, as several courses are open to him at common law, and
by statute.

Sec. 551. At common law.

No damages are recoverable at the common law by the defend-
ant in an action of replevin, or second deliverance. Should there
be a verdict for the defendant, or the plaintiff be nonsuited,
the judgment at common law would merely be for a return of the
goods.*

Sec. 552. By statutes of Henry VIII.

By.the combined effect of two statutes, 7 Hen. VIII, ch. 4, § 3,
and 21 Hen. VIII, ch. 19, § 3, every avowant, and every person
who makes avowry or cognizance, or justifies as bailiff in any reple-
giare or second deliverance for any rent, custom, or service, or for
damage feasant, upon any distress taken in any land or tenement,
if the avowry, etc., be found for him, or the plaintiff be non-
suited, or otherwise barred, shall recover his damages and costs
that he has sustained, as the plaintiff should have done if he had
recovered.

' Chit. Prac. 1030, 9th ed.; Archb. C.; Chitty’s Arch. Pr. 1092, 12th ed.

Prac. (1853) 385. It is doubtful By § 71,a deposit may be made instead
whether special damages arising from of security being given. This statute

an injury to the goods by defendant or
otherwise can be recovered; Connor
», Bentley, 1 Jeb. & Sy. Ir. Rep. 246.
See Ognell’s case, 3 Leon. 213; Atkin-
son v. Nesbitt, 9 Ir. L. R. 271, and
cases cited there.

219 & 20 Vict., ch. 108, Schedule

is extended to all cases of replevin by
23 & 24 Vict., ch. 126, § 22.

* Gibbs o. Cruikshank, L,R., 8C. P.
455; 42 L. J. O. P. 278.

4Chit. Forms, 584, 7th ed.; Tidd’s
Forms, 607.
ReErPievin. 529

An executor who avows or makes cognizance under the pro-
visions of 82 Hen. VIII, ch. 37, may recover damages under the
above clauses ;! but they do not apply where the defendant avows,
etc., for any amercement by a court leet or court baron ;’ nor where
the defendant pleads property in the thing distrained.’

Sec. 553. By statute Car. IL

By 17 Car. II, ch. 7, § 2, where in replevin for arrears of rent
the plaintiff shall be nonsuit before issue joined, the defendant is
to make a suggestion in the nature of an avowry or cognizance, upon
which a writ of inquiry is to issue; and a similar writ is to be
awarded where the defendant has judgment on demurrer, § 3; and
the jury are to inquire the value of the goods, or cattle distrained,
and the rent in arrear. Upon the return of the writ, defendant is
to have judgment to recover the *arrears of rent, if the
goods, etc., amount to that sum; and if not, then the value
of such goods, etc., with his full costs of suit. Where the plaintiff
is nonsuit after issue joined, or if the verdict shall be against the
plaintiff, then the jury who are impaneled must make the same
inquiry. And if they omit to do so, no other jury can.“ But the
defendant is under no obligation to proceed by this statute; there-
fore, in such a case, the defendant may enter up judgment de re-
torno habendo at common law, even after error brought ;° and where
the jury found the amount of damages and costs, but not the value
of the distress or the rent in arrear, it was held that it might be
taken to be a good judgment under stat. 21 Hen. VIII, ch. 19,
§ 3.°
Sec. 554. Replevin for poor-rates.

Stat. 43 Eliz., ch. 2, § 19, enacts that where goods seized under
a distress for poor rates. are replevied, and the issue is found for the

defendant, or the plaintiff is nonsuit after appearance, the defendant
shall recover treble damages. Treble damages, under this act, are

[3774]

? Farnell v. Keightley, 2 Roll. Rep. Herbert ». Walters, 1 Ld. Raym. 59;
7, Kynaston v. Mayor of Shrewsbury, 2
? Porter v. Gray, Cro, Eliz. 801; Str. 1052.
Samuel v. Hoder, Cro. Jac. 520. 5 Rees v. Morgan, 3 T. R. 349.
3 Hard. 153. 6 Gamon »v. Jones, 4 T. R. 509.
4Sheape v. Culpeper, 1 Lev. 255;

67

45
580 InuegaL Distress.

three times the amount of the charges incurred in respect of the
distress; but not three times the amount of the sum distrained for
also. Therefore, where the plaintiff had failed to proceed with his
writ, he was held liable to the sum due, and three times the broker’s
charges.!

Sec. 555, Illegal distress. Form of action where an irregularity has been
committed in distraining for rent.

The damages in suits of this nature depend greatly upon the form
in which the action may be brought. Where the defendant can
be treated as a trespasser ab initio, so as to make’ his possession of
the goods wholly wrongful, their entire value will be’ recoverable.
When it is necessary to sue for consequential damage, the plaintiff
can only obtain damages for the special injury he has suffered, which
may be very slight, where he was really in fault, and liable toa
seizure of his goods.

The action must always be for consequential damages where an
irregularity has been committed in distraining for rent. This is

enacted by 11 Geo. II, ch. 19, § 19, which, after reciting
[*875] ,. ‘ ea : : ;
that some irregularity is occasionally committed, for which
the party distraining is deemed a trespasser ab inzteo, and the plain-
tiff has been entitled to recover the full value of the rent for which
the distress was taken, provides, that where any distress shall be
made for any rent justly due, and any irregularity or unlawful act
shall be afterward done by the party distraining, or his agent, the
' distress shall not therefore be deemed unlawful, nor the persons
making it trespassers ab initio; but the parties aggrieved shall re-
cover full satisfaction for the special damage they shall have sus-
tained, and no more, in an action of trespass, or on the case, at the
election of the plaintiff. And no tenant shall recover in an action
for any such unlawful act or irregularity, if tender of amends have
been made before action brought.”

It was for some time assumed that under this section a plaintiff
might always recover nominal damages for an irregularity, but it is
now settled that the plaintiff can only recover where actual damage
is proved."

' Newman v. Bernard, 10 Bing. 274. * Rodgers ». Parker, 18 C. B. 112;

? 141 Geo. II, ch. 19, § 20. 25 L, J. C. P. 220; Lucas a. Tarleton,
3H. &N. 116; 27 L. J. Hx. 246.
Intecat Distress. 5381

The following are the principal species of irregularity for which
actions may be brought:

Sec. 556. Action for an excessive distress.

Actions for excessive distress arise out of the statute 52 Hen. III,
ch. 4,! which provides that distresses shall be reasonable and not too
great. And they that take great and unreasonable distresses shall
be grievously amerced for the excess of such distresses. And such
actions must always be in case.” Damages for an excessive distress,
where the goods have been sold, will depend upon the loss and
inconvenience the plaintiff has been put to by having an unneces-
sary auzount of his goods taken from him. If the amount for which
they sold beyond the claim against him, has not been returned
to him, of course it will form part of the damages.’ In order
*to estimate whether the amount taken was excessive or not,
their value must be calculated according to the sum which
they would fetch at a broker’s sale, not at the price which could be
obtained for them from an incoming tenant in the same line of
business as the plaintiff,‘ because the former is their value for the
purpose of satisfying the defendant’s demand. Where, however,
the declaration makes no mention of a sale, either as special damage,
or by way of substantive complaint, damages can only be recovered
in respect of the detention up to the time they were sold, and not
in respect of the sale itself.° In a recent case, in which there had
been no sale and no actual damage was shown to have been sus-
tained, the court, of exchequer were of opinion that in every case
of excessive distress there must be some loss or inconvenience for
which a jury ought to be told that they must find some damages
either nominal or substantial.’

[*376]

' Probably the action would lie even
independently, for Lord Coxe says of
this statute, it agreeth with the reason
of the common law. 2 Inst. 107; 1M.
& W. 447.

° Woodcroft 7. Thompson, 3 Lev.
48; Lynne ». Moody, 2 Stra. 851;
Hughes v. Browne, 7 Ir. L. 492. See,
as to the amount of interest in the
goods distrained which will enable the
plaintiff to support an action, Fell v.
Whitaker, L. R., 7 Q. B. 120; 41 L. J.
Q. B. 78.

3 See yer Pare, B., 1M. & W, 448.

4 Wells v. Moody, 7C. & P. 59. The
price realized at the sale is not a con-
clusive test of the value; Smith 2.
Ashforth, 29 L. J. Ex. 259. There
substantial damages were recovered,
though the sale did not realize the
rent due.

5 Thompson v. Wood, 4 Q, B. 493.

6 Chandler v. Doulton, 3 H. & OC.
553; 34 L. J. Ex. 89.
582 InteGaL Distress.

On the other hand, when the distress is so excessive on the face
of it, that some of the things must be supposed to have been taken
without shadow of claim, as where 6 oz. of gold and 100 oz. of sil-
ver were taken for a debt of 6s. 8d., trespass will lie."

No action at all is maintainable for distraining for more rent than
is due, provided the distress is not excessive as to that which is due;
and an assertion that the distress was made maliciously, will not
render a count to that effect good.’

Sec. 557. Irregularity in distraining corn or hay, growing crops.

By § 3 of 2 W.& M.,, sess. 1, ch. 5, § 3, loose corn or hay may be
distrained for rent, but it cannot be removed from the land till it is
either replevied, or sold in default of replevying.

By 11 Geo. II, ch. 19, § 8, growing crops may be seized for
[#877] *arrears, and ent, cured, and aks up when ripe in barns, etc.,

upon the premises, and appraised or sold in the same manner
as other goods or chattels; and the appraisement to be taken when
cut, gathered, cured, and made, and not before.

Sec. 558. Effect of tender.

Tender of rent in arrear, and cost of charges of making distress,
and which shall have been occasioned thereby, at any time before
corn, etc., is ripe, cut, and cured, to put an end to distress.’

Sec. 559. Amount of damages.

Where there has been an excessive distress by taking corn or hay
loose (under 2 W. & M., sess. 1; ch. 5, § 3), or growing crops (under
11 Geo. II, ch. 19), the measure of damage is not the full value of
the crops, beyond the amount which ought to have been taken,
because the tenant is not ultimately deprived of them. It is simply
such a sum as is a compensation for the additional expense of a dis-
tress, and of keeping possession of that part of the crops which it
was unnecessary to take during the time of possession ; and some
compensation for the loss of absolute ownership, and power of

1 Hutchins ». Chambers, 1 Burr. ruling Taylor v. Henniker, 12 A. & E.
579; Crowther v. Ramsbottom, 7 T. 488. It is settled law that a distrainer
R. 658. may justify for any cause which ex-

» Tancred v. Leyland, 16 Q. B. 669; isted at the time, although he set u
Glynn v. Thomas, 11 Ex. 870; 25L. a different one; Phillips », Whitsed,

J. Ex. 125; Stevenson v. Newnham,. 2H. & E. 804; 29L. J. Q. B. 164.
13 C. B. 285; 22 L. J.C. P. 110; over- 11 Geo, II, ch. 19, § 9.
IntegaL Distress. 583

disposition for the same time; or if the tenant has replevied, then
a compensation for the additional expense and inconvenience of
replevying to a larger amount. If movables have been distrained
on along with growing crops, the probable value of the latter cannot
be taken as a present satisfaction of the rent to that amount, so as
to make the landlord a wrong-doer by taking and selling all, or, as
the case may be, the excess of movable chattels, and liable for their
value. He has aright to apply those which are immediately pro-
ductive in satisfaction of the rent pro tanto, and hold a reason-
able part of the present unproductive fund as a security for the
balance.

Sec. 560. Irregularity does not make sale void.

In one case arising out of the latter statute, it was decided that a
sale of growing crops was wholly void unless the provisions of the
act were complied with; and that no action could be maintained for
consequential loss arising from a premature sale, since it was such a
nullity that no legal damage could be sustained from it.* This
decision, however, is *opposed to a later one where a similar [#378]
question arose. A landlord seized growing crops under a
distress for rent, and sold them before they were cut, contrary to the
statute. They were afterward cut and carried away by the pur-
chaser. It appeared that they sold for the full amount they would
have fetched, if sold at the proper time; and that rent to an amount
greater than their value was due. Nominal damages only were
given. Lord Lynpuurst, C. B., said: “By the terms of the act,
the parties injured by an unlawful act, committed after a lawful dis-
tress, is only to recover to the amount of the damage he has actually
sustained.” Bayuzy, B., asked: “What damage is the plaintiff
entitled to? Why, the difference between the amount for which
the crops would have sold, if the sale had been regular, and that

1 Per Parks, B., Piggott vo. Birtles, and if the property cannot be returned,

1M. & W. 441, 451. In replevin the
rule of damages is the same as in
trover for the detention of the prop-
erty. Walls v. Johnson, 16 Ind. 374;
Butler v. Mehrling, 15 Tl. 488, to wit:
the value of its use during the period
of detention. Morgan v. Reynolds,
I Mont. (Ter.) 163.

If the defendant succeeds, he is
entitled to a returnof the property,

he is entitled to a judgment for the
‘value of the property. Walls». John-
son, ante, with damages for its deten-
tion. Rowley v. Gibbs, 14 Johns. (N.
Y.) 885. And in cases where the cir-
cumstances of the taking are such as
to warrant it, exemplary damages may
be given, Single » Schneider, 30
Wis. 570.
? Owen v. Legh, 3 B. & Al. 470,
584 Intecgat: Distress.

which they actually sold for.” The form of the rule in this case
merely rendered it necessary for the court to decide that the plaintiff
was not entitled to more than nominal damages, but the grounds of
decision would have justified a verdict for the defendant; and it has
since been decided, in a similar case, that where the plaintiff fails to
prove special damage he is not entitled to nominal damages, but the
defendant is entitled to the verdict.’

Sec. 561. Selling without appraisement.

At common law the distrainor could not sell the property seized,
but by 2 W. & M., sess. 1, ch. 5, § 2, where goods are distrained for
rent, and the tenant or owner of the goods shall not, within five
days next after such distress taken, and notice thereof (with the
cause of such taking), replevy the same, then after such distress and
notice and expiration of five days the distrainor may cause the goods
to be appraised by two sworn appraisers, and after such appraise-
ment may sell for the best price that can be gotten at the time,’
leaving the overplus, if any, in the hands of the sheriff, etc., for the
owner’s use. In an action on the case for selling goods distrained,
without appraisement, the measure of damages is the value of the
goods minus the rent due.*

Sec. 562. Other irregularities.
[#379] * Actions on the case also lie upon the equity of the above
statute, for not removing the distress in a reasonable time;
though the plaintiff may, if he choose, sue for the continuing upon
the premises after five days, as an independent trespass.° And sim-
ilarly for not giving notice, and not selling at the best price.’ And
apparently for locking up the whole of the premises and excluding
the tenant.’ The damages in all such instances will depend upon
the actual loss the plaintiff can prove. In an action for not selling
a distress at the best price, he was allowed to show that the goods

1 Proudlove v. Twemlow, 1 C. & M. 4 Biggins v. Goode, 2 Cr. & J. 364;

326. non v. Egerton, 7 Ex. 407.
* Rodgers v. Parker, 18 C. B. 112; om. Dig. Distress, I.
25 L. J. C. P, 220. , Griffin v. Scott, 2 Stra. 717.

* The statute contemplates a sale. "Com. Dig. Distress, D. 7; 2 Chitt.
The landlord’s taking the goods atthe PI. 537.
.condemned price does not divest the  * Smith ». Ashforth, 29 L. J. Hx.
tenant's Poe in them. King v. 259.
England, 4 B. & 8. 782; 88 L. J.
Q. B. 145.
Inueeat Distress. 535

were left standing in the rain, and that they were improperly lotted.t
Want of notice does not render a distress invalid.’

Sec. 563. Driving cattle into another county.

By 52 Hen. II, ch. 4, and 1& 2 Ph. & M.,, ch. 12, § 1, it is
enacted that no distress of cattle shall be driven out of the hundred,
rape, wapentake, or lathe where such distress is taken, except it be
to a pound overt within the same shire, not above three miles dis-
tant from the place where the said distress is taken; and that no
cattle or other goods distrained or taken by way of distress, for any
matter or cause at one time, shall be impounded in several places,
whereby the owner shall be constrained to sue several replevies for
the delivery of the said distress; penalty for every such offense
100/., and treble damages.

In all these cases where the first taking of the distress is lawful, a
subsequent disobedience to the statute does not make it void, so as
to enable the other party to sue in trespass; therefore where the
action is for driving into another county,’ it must be framed in case
upon the statute. The damages would probably be such as the act
suggests, viz., the additional trouble and expense of replevying.
This act, it will be observed, equally applies to cases of damage
feasant.

Sec. 564, Cases to which 11 Geo. II, ch. 19, § 19, does not apply.

It will be readily seen that there are many cases to whien the
above section,’ in favor of distresses where there has *been a [* 38 0]
subsequent irregularity, does not apply. It is expressly con-
fined to distresses for rent, and therefore the law as to damage fea-
sant is left where it was before. Nor does it apply where the distress
is void ab initio ; as, for instance, where no rent was due at all;° or:
where the distress was effected by breaking open an outer door ;* or
by opening a closed window,’ or after sunset and before sunrise ;°
or where the goods taken were not distrainable at all. In all these
cases trespass or trover may be maintained, and the actual value of

1 Poynter v. Buckley, 5 C. & P. 512; * Treland v. Johnson, 1 Bing. N. C.
and see Ridgway ». Stafford, 6 Ex. 162.

404: Roden v. Eyton, 6 C. B, 427. 6 Brown »v. Glenn, 16 Q. B. 254.
? Trent ». Hunt, 9 Ex, 14. 1 Nash v. Lucas, L. R., 2 Q. B. 590."
. > Gimbart ». Pelah, 2 Str. 1272. 8 Tutton o. Darke, 5 H. & N. 647;

411 Geo. II, ch. 19, § 19. 29 L. J. Ex. 271.
536 InzecaL Distress.

the things recovered! And where a distress is made by virtue of
2 W. & M., sess. 1, ch. 5, for rent pretended to be due, and none is
really in arrear, the owner of the goods distrained may recover double
their value and full costs,” and the jury ought to be directed to give
this amount.’ Nor does it apply to any independent act, irrespective
of the distress; as, for instance, where a landlord, after making a
distress, turned the tenant out of possession.‘

Sec. 565. Effect of a tender.

A distress will also be void ab initio, when made after tender.
But tender after distress, and before impounding, makes the detainer,
and not the original taking, wrongful; and at common law tender
after the impounding makes neither the one nor the other wrongful,
for then it comes too late, because the cause is put to the trial of the
law to be there determined.’ But an action on the case, upon the
equity of the statute 2 W. & M., sess. 1, ch. 5, § 2, will lie where
the landlord has proceeded after tender, when the tender took place
after the impounding but within the five days and before sale.’
[381] *The tender must be made to some person authorized to

receive the money, and a man merely left in possession has
no implied authority at law todo so.’ Before the distress is actually
made a tender of rent without expenses is sufficient, though the
warrant have been delivered to the broker for execution.*

Sec. 566. What makes a party a trespasser ab initio.

To make a party trespasser ab initio, there must be some act
done, as seizing after tender, or working or killing a distress taken
damage feasant : mere non-feasance, as refusing to return a distress

1Keen »v. Priest, 4 H. & N. 236;
28 L. J. Ex. 157; Attack v. Bramwell,
8 B. & 8. 520; 32 L. J. Q. B. 146;
Swire v. Leach, 18 C. B. (N. 8.) 479;
34 L. J.C. P. 150; Nargett ». Nias,
1E. GE, 439; 28 L. J. Q. B, 143.

28. 5.

3 Masters v. Farris, 1 C. B. 715.

4 Etherton 2. Popplewell, 1 Hast,
139.

5 Six Carpenters’ case, 8 Rep. 147, a;
Gilb. Dist. 50, 67. See, as to tender
after distress and before impounding,
Loring v. Warburton, E. B. & E. 507;
28 L. J. Q. B. 81; as to tender after
impounding, where the distress was

taken, damage feasant, Sheriff ».
James, 1 Bing. 341; Anscomb a,
we 1 Camp. 285; 1 Taunt. 261,

§ Johnson v. Upham, 2 E. & E. 250;
28 L. J. Q. B. 252; dissenting from
Ellis v. Taylor, 8 M. & W. 415; and
Ladd v. Thomas, 12 A. & E. 117,

"Boulton v. Reynolds, 2 E. & E.
369; 29L. J.Q. B. 11.

® Bennett ». Bayes, 5 H. & N. 391;
29L. J. Ex. 224. In this case the
plaintiffs recovered against the land-
lord’s agents who had signed the dis-
tress warrant.
Iutecat Distress. 587

upon tender made after seizure, will not make the original taking,
but only the subsequent detainer, wrongful. So where customs
otiicers detained dutiable goods at the custom-house, under an
unfounded belief that they were prohibited and liable to forfeiture,
this was held not to be a trespass, as they had come into their pos-

session originally without any trespass or seizure on their part.’

Sec. 567. Trespass ab initio as to part of the distress.
Even where a party is, or becomes, a trespasser ab initio, as to

1 Six Carpenters’ case, 8 Rep. 146, a.
If the distrainor unlawfully works the
distress, the owner may retake it;
Smith ». Wright, 6H. & N. 821; 30
L. J. Ex. 318. The distrainor is bound
to keep the cattle in a fit and proper
place; Bignell v. Clarke,5 H. & N.
485; 29 L. J. Ex. 257.

2 Jacobsohn v. Blake, 6 M. & G. 919.

Whoever abuses authority derived
from law is a trespasser ab initio.
Aliter, if the authority is derived from
the party bringing suit. Bradley 2.
Davis. 14 Me. 44; Jarrett 0. Gwath-
mey, 5 Blackf. (Ind.) 237.

A finding B’s sheep in his own close,
drove them out of the close, and then
drove them away to a considerable dis-
tance, to the injury of B. Held, that
the driving of the sheep away was a
wrongful act, which made A a tres-
passer ab initio, and amounted to a con-
version of the property; but that B
might waive the trespass and conver-
sion, and recover for the damage sus-
tained, in a special action on the case,
Gilson v. Fisk, 8 N. H. 404.

If a person enters on land, by license
of the owner, for a particular purpose,
and, after entry, does other acts incon-
sistent with the authority given him,
be does not thereby become a tres-
passer ab initio.

Otherwise if he enters, by permis-
sion, under an agreement with the
owner to purchase, and then refuses to
carry the agreement into effect. Wen-
dell v. Johnson, 8 N. H. 220.

A sheriff, having a writ of attach-
ment, entered upon the defendant’s
land, for the purpose of executing the
writ, and took and carried away his
goods, and deposited them in a place
in the open air, but in which they
were in no danger of injury, except
from malice or wantonness, and a por-

68

tion of the same were afterward de-
stroyed, by a person unknown, it was
held that the sheriff did not thereby
become a trespasser ad initio, nor liable,
as such, in trespass for the original
entry. Ferrin ». Symonds, 11 N. H.
363; but if an officer levies upon prop-
erty by virtue of an execution, and
advertises the same for sale, and neg-
lects to sell it upon the execution, he
becomes a trespasser ab initio. Bond
vo. Wilder, 16 Vt. 393.

Selling an article under process of
law before or after the time prescribed
by law, will make the officer a tres-
passer ab initio, Smith o. Gates, 21
Pick. (Mass.) 55.

The sale by an officer of the entire
property in goods owned by two
jointly, under execution against one of
them, is a trespass abiniio. Waddell
v. Cook, 2 Hill (N. Y.), 47.

A revenue officer, who has seized a
vessel, may become a trespasser ab
initio, by violating his trust. Van
Brunt 7, Schenck, Anth. N. P. (N. Y.)
217. :
Where a person enters by public
license or authority of law, upon the
premises of another, and afterward,
in the prosecution of his design, com-
mits any unwarrantable act, the law
‘regards him as a trespasser ab initio,
and holds him fully answerable for all
theinjury committed. But if he enters
the premises of a private person by
his consent, and afterward commits
an unlawful act, he is liable only for
the injury committed subsequent to
that act. Ballard o. Noaks, 2 Pike,
45.

If an officer justifies in trespass,
under a legal warrant, an act relied
on to make him a trespasser ab initio
should be new assigned. Jarrett v.
Gwathmey, 5 Blackf. (Ind.) 238,
538 Intze¢at Distress.

part of the thing distrained on, this does not make the distress void
as to the rest. Accordingly where several barrels of beer were dis-
trained for rent, and the distrainor drew beer out of one of them,
Lord Hor held that it made him a trespasser, ab initio, as to that
one only.’ This decision was acted upon in a modern case under
the following circumstances. The defendant distrained for rent,
and included in the inventory looms then at work, and without
which there was a suflicient distress. The defendant remained in
possession five days, and then withdrew on being paid rent and
costs. The judge told the jury, that the distraining the looms
entitled the plaintiff to a verdict for their value; and that, as no
damage was proved, it was for them to say whether they would
give more than the *amount paid to redeem them. They
found a verdict for the sum paid. A new trial was granted,
unless plaintiff would consent to nominal damages being entered.
Lord Asinerr, CO. B., said, “The Six Carpenters’ case leaves it an
open question how far the party becomes a trespasser, ab initio, as
to the whole distress by an excess as to part. It is very reasonable
that he should not, but that his liability should be limited according
to the doctrine laid down by Lord Hotr. This is only a constructive
trespass as to the looms, and yet the plaintiff is asking for damages
to the amount of the whole rent. It is the same as if the goods had
been sold, and the value of the looms had been returned to him.” ?

[*382]

Sec. 568. Things distrainable conditionally. .

By 51 H. III, ch. 4, no man shall be distrained by his beasts that
gain his land, nor by his sheep for any debt, if there can be found
another distress, or chattels sufficient whereof they may levy the
distress, or that is sufficient for the demand; except impounding of
beasts that a man findeth in his grounds damage feasant.* And the
same conditional exemption extends to the instruments of a man’s
trade or profession.‘ But a seizure of such property will not be tor-
tious, where the only other distress consists of growing crops. The
landlord has a right to resort to those subjects of distress which are

1 Dod v. Monger, 6 Mod. 215, broken in or used for harness or the
* Harvey v. Pocock, 11 M. & W. plow, are not within it as beasts which
740, gain the land. Keen ». Priest, 4H. &
8 This statute applies to the sheepof N. 236; 28 L. J. Ex. 157.
an undertenant of the landlord’s ten- _4 1 Inst. 47, a; Simpson 2. Hartopp,

ant. Cart colts and young steers, not Willes, 512.
Inuecat Distress. 539

immediately available by sale, and is not bound to take those which
cannot be productive till a future period.’

Statute 17 Geo. IT, ch. 38, § 8, contains provisions similar to those
of 11 Geo. II, ch. 19, §8§ 19 and 20, in case of distresses for poor
rates.

1 Piggott v. Birtles, 1 M. & W. 441.
540

[*383]

Insories To LAND.

*CHAPTER XXIII.

INJURIES TO LAND.

Sc. 569.
570.
571.
572.
573.
574,
575.
576.
577.
578.
579.
580.

Injuries to land.

Evidence of interest.

Trespass by mining.
Co-trespassers.

Several trespassers.
Vindictive damages. °

Sec. 569. Injuries to land.

Damages vary according to plaintiff’s interest in the land.

Right of tenant to carry away soil.
Reservation of rights on surface to grantor in fee.

Prospective injury from defendant’s act.

When consequential loss may be allowed as substantive damage.

Compensation for acts done by authority of parliament.

Having in the preceding chapter discussed those actions which

are brought for wrongs affecting personal property, I shall employ
the present chapter in examining those which affect real property.

In actions for injuries to land, the measure of damages is the
diminished value of the property, or of the plaintiff’s interest in it,
and not the sum which it would take to restore it to its original
state. This was decided in a case where the defendant had cut a
ditch in the plaintiff’s field, and carried away the soil! And so

1 Jones v. Gooday, 8M. & W. 146.
In Maye v. Tappan, 23 Cal. 306, in un
action for trespass for an entry on the
mining claim of the plaintiff and tak-
ing away gold-bearing earth, the tres-
pass not being willful, the measure of
damages was held to be: the value of
the earth at the time it was separated
from the surrounding soil, and it may
be estimated by deducting the expense
of extracting the gold from it from
the value of the gold itself.

In an action for breaking and enter-
ing the plaintiff’s close and ae
away hemlock and spruce trees an
hemlock bark, the measure of damages
was held to be the value of the prop-
erty at the time of the conversion, and

in finding the value of the property
at the time of the conversion, evi-
dence as to the price of bark at differ-
ent times, both before and after the
conversion, may be considered. Adams
v. Blodgett, 47 N. H. 219.

In an action for obstructing a ditch
running through the plaintifi’s land,
it was held that damages could only
be recovered up to the commencement
of the suit. Shaw v. Etheridge, 3
Jones’ (N. C.) L. 300.

In Hatchell ». Kimbrough, 4 Jones’
(N. C.) L. 168, it was held that where
the loss of an eye was the direct and
immediate consequence of exposure to
which the plaintiff was subjected by
removing the roof of his house, the
Iysurtms to Lanp. 541
where the defendant has knocked down the plaintiff’s house, built
upon his land, which is on lease, the proper measure is the amount:
by which the selling price of the premises would be reduced by the
wrongful act.! This amount is to be estimated by the value of the
old house, and not by the sum it would cost to build a new one.’
Even if the house were only leased to the plaintiff, who was himself
under a covenant to repair, the same principle would apply, for his
liability on the covenant is calculated in the same way.’ Of course,
special loss or injury to.the occupant might give rise to additional

damages.

Sec. 570. Damages vary according to plaintiff's interest in the land.

The damages will vary considerably, according to the plaintiff's
interest in the land. This is obviously just, both to prevent the

plaintiffs getting extravagant recompense when his *interest
is on the point of expiring, or very remote, and to prevent

[#384]

the defendant being forced to pay for the same damage several

jury may consider it an aggravation of
damages.

So, in a case where the injury con-
sisted in the construction of a railroad
through the plaintiff's pasture, dama-
ges for the non-thriving of cattle, as
a result thereof, were held not too
remote. Baltimore, etc., R. R. Co. »v.
Thompson, 10 Md. 76.

The principle upon which damages
are given in an action of trespass is to
indemnify the plaintiff for what he has
actually suffered, taking into con-
sideration all the circumstances of the
transaction; and where treble dama-
ges are given by statute, it does not
affect such principle. Therefore,
where A, having obtained a verdict
and judgment of restitution, in a pro-
cess of forcible entry and detainer
against B, brought trespass to recover
damages, sustained by reason of his
being kept out of possession of the
premises for the time intervening be-
tween the entry and the restitution,
and on the trial, B offered in evidence,
for the purpose of repelling A’s claim
for damages, the record of a judgment

' Hosking v. Phillips, 3 Ex. 168.
2 Lukin ». Godsall, Peake’s Ad. Ca.
15; Dodd v, Holme, 1 Ad. & Ell. 493,

in his favor against A, in a summary
process to recover possession of the
premises, in connection with evidence
that the acts complained of were done
by’B, by virtue of this judgment, under
a claim of right, held, that such
evidence was admissible. Bateman 2.
Goodyear, 12 Conn. 575.

In trespass for destroying part of a
mill-dam, the plaintiffs were allowed
to recover consequential damages for
the interruption to the use of the mill,
and the diminution of their profits on
that account, this injury being alleged
in the declaration. White 0. Moseley,
8 Pick. (Mass.) 356.

So where the trespass consisted in
removing a few rods of fence, that the
proper measure of damages was the
cost of repairing it, and not an injury
arising to the subsequent year’s crop
from the defect in the fence. Loker».
Damon, 17 Pick. (Mass.) 284.

In an action for removing timber,
damages are not restricted to the value
of the timber; the deterioration of the
land may be an element. Wallace o.
Goodall, 18 N. H. 439.

507; Hide ». Thornborough, 2C.&
K. 250.
3 Yates v. Dunster, 11 Ex. 15,
542°

Insurres To Lanp.

times over. The same act may give rise to different injuries; the
- tenant may sue for the injury to his possession, and the landlord for

the injury to his reversion.

1 Jefferson v. Jefferson, 3 Lev. 180;
Jesser v. Gifford, 4 Burr. 2141. In an
action of trespass to the realty the
tenant alone can maintain an action
for an injury to his possession, but for
an injury to the estate, the reversioner
must sue.. During the tenancy, the
tenant has exclusive dominion over the
estate, and consequently any thing that
interferes with, or impairs that domin-
ion, is an injury to his rights; but the
reversioner has the property therein,
and any trespass that operates as a
direct injury thereto is an injury to
his right, and if it operates both as an
injury to the rights of the tenant and
the reversioner, each may have a sepa-
rate action for his injury; the tenant
in trespass, and the reversioner.in case.
The reason for this rule is apparent:
No person can be permitted to main-
tain an action for an injury done to the
property of another. To the extent of
the injury to his rights, he may main-
tain an action and ‘have recovery, but
he cannot be permitted to bar the
rights of another whose property has
been injured, by an action in his favor.
Thus, a tenant in the possession of a
building may recover for any injury
thereto that interferes with his posses-
sion, and if he is compelled to repair
the building, he may recover the neces-
sary expenses incurred by him in that
respect. Walter v. Post, 4 Abb. Pr.
(N. Y.) 382. But if there is any in-
jury to the estate beyond that, the
damages are only recoverable by an
action in the name of the owner of the
estate. . Parks v. Boston, 15 Pick.
(Mass.) 198; Okeson »v. Patterson, 29
Penn. St. 22; George v. Fisk, 32 N.
H. 32; Hardrop v. Gallagher, 2 E. D.
8. (N. Y.) 523.

For the throwing down of a fence,
which the tenant is bound to repair,
the tenant may maintain an action for
the injury, and may recover, in addi-
tion to the injury to his possessory
right, the expense of restoring it.
Foster v. Elliott, 83 Iowa, 216. But
otherwise if the landlord is bound to
repair. Brooks v. Boston, 19 Pick.
(Mass.) 174,

And so where several are entitled in

A tenant for life may maintain tres-
pass quare clauswm against a stranger for
cutting trees upon the estate. Lane 2.
Thompson, 43 N. H.320; Bolivar Mfg
Co. v. Neponsett Mf’g Co., 16 Pick.
(Mass.) 247; Grant v. Lyon, 4 Mete.
(Mass,) 477; Brooks v. Boston, 19 Pick.
(Mass.) 174; Walter ». Post, 4 Abb.
Pr. (N. Y.) 882. The tenant in pos-
session may maintain trespass against
the landlord. Smith ». Price, 42 IIL.
899. Possession without title is suffi-
cient to uphold the action. Webb o.
Sturtevant, 1 Scam. (IIL) 181.

The landlord cannot maintain tres-
pass, but may case for injuries to the
reversion. Parks v. Boston, 15 Pick.
(Mass.) 198; George v. Fisk, 32 N. H.
132; Gourdier v. Cormack, 2 E. D. 8.
(N. Y.) 200; Barber v. Trustees, etc.,
51 Tl. 396; Wilcox v. Kinzie, 3 Scam.
(Ill.) 218; Halligan ». R. R. Co., 15
Il. 558, As to remedy for cutting
and removing crops when the owner is
not in possession, see Stockwell ».
Phelps, 34 N. Y. 363. Working quar-
ries. Freer v. Stotenbur, 2 Keyes (N.
Y.), 467. Injuries to the inheritance.
Wood ». Williamsburgh, 46 Barb. (N.
Y.) 601; Lienow ». Ritchie, 8 Pick.
(Mass.) 235; Baker v. Sanderson, 3
Pick. (Mass.) 848; Lane v. Thompson,
43 N. H. 320. And the landlord may
maintain an action on the casé against
the tenant for an injury to the estate.
Ray v. Ayres, 5 Duer (N. Y.), 494. In
an action of trespass the recovery must
always be limited to the tenure by
which the plaintiff holds, and he can
recover no damages except such as
affect his own right. Gilbert », Ken-
nedy, 22 Mich. 5. ;

Where ‘A has an estate for life in
possession, in a term for ninety-nine
years, B has an estate in remainder for
the residue of the term after the death
of A, and A has the reversion after the
expiration of the term, in an action for
trespass, against a stranger, for enter-
ing and cutting down trees and taking
them off, it was held, that, by means
of the per quod, A might recover the
entire value of the timber, and that B
was not entitled to any part of such
Ingurres to Lawn. 543

succession, as tenant for life, in tail, in fee, each can only recover
damages commensurate to the injury done to their respective estates.!
Hence where a stranger cuts down trees, the tenant can only recover
in respect of the shade, shelter, and fruit, for he was entitled to no
more; and so it is where the occupant is tenant in tail after possi-
bility of issue extinct; but the reversioner or remainder-man will
recover the value of the timber itself.? And so where the action
was by the owner of a house against his lessee for opening a new
door, whereby the house was injured, and the plaintiff was preju-
diced in his reversionary interest ; the jury found that the house was
in no way injured by the act complained of, upon which nominal
damages were entered for the plaintiff, subject to a special case; it
was held that there ought to be a new trial, that the jury might say
whether the reversionary right had been injured, which it might be
by the evidence of title being weakened, though the house was as
good'as ever.® But a simple trespass, even though accompanied by
a claim of right, is not necessarily injurious to the reversionary
estate. To entitle a reversioner to sue, the wrong complained of
must be in its nature permanent.* Temporary nuisances, as for
example, noise or smoke, *will not give a reversiorer a right [#385]
of action, even though his tenants leave in consequence, and
the rent which can be obtained for the premises is reduced.*

value of his expectancy. Burnett v,

value, though he also could bring an
Thompson, 6 Jones’ (N. C.) Law, 210.

action on the case and recover dama-
ges for the same act, as lessening the

Whitbeck o. New

‘Evelyn v. Raddish, Holt’s N. P.
548; Johnstone v. Hall, 2 Kay & J.
414; 25 L. J. Ch. 462.

? Bedingfield v. Onslow, 3 Lev. 209,
4 Rep. 63, citing 27 H. VI, Waste, 8.
Where fruit trees were destroyed by
- fire through the negligence of the
defendants, the measure of damages
-was held to be the value of tbe trees
as they stood on the land, not the
diminished value of the land. It was
laid down that although a fruit tree,
differing from a timber tree, has
strictly no commercial value as a tree
independent of the land which sus-
tains it, it has a value capable of esti-
mation, having regard to its average

annual products.
York Central Railroad Co.,. 36 Barb.
(N. Y.) 644.

3 Young v. Spencer, 10 B. & 0.145.
But that was an action on the case in
the nature of waste by a reversioner
against his tenant, and what was said
in it must be construed with reference
to the subject-matter. Per Parxn,
J., in Baxter v. Taylor, 4B. & Ad. 72.

4 Baxter v. Taylor, 4 B. & Ad. 72.

5 Mumford ». Oxford, Worcester,
and Wolverhampton Ry. Co.,1 H.& N.
84; 25 L. J. Ex. 265; Simpson v. Say-
age, 10. B. (N. 8.) 847; 26L.J3.0.P.
50.

.
544 Insurizs to Lanp.

Sec. 571. Evidence of interest.

For the same reason the plaintiff must show what his: interest is,
and its duration. A tenant can only obtain npminal damages, unless
he gives evidence of the time for which he is entitled to occupy ;?
and an owner who has parted with the right to the surface of the
soil, as for instance by granting a right of pasturage over it, with
exclusive possession, cannot sue at all for any trespass which does
not affect the sub-soil.’

Sec. 572. Right of tenant to carry away soil.

There is one curious case which seems at first to be at variance with
this principle. In reality, however, upon the grounds upon which it
was decided it is in perfect accordance with it. J. J. demised land to
the plaintiff at an annual rent for twenty-one years, with the liberty
to dig half an acre of brick earth annually ; the lessee covenanted that
he would not dig more, or if he did, that he would pay an increased
rent of 3752. per half acre, being after the same rate that the whole
brick earth was sold for. A stranger dug and took away brick earth.
The plaintiff sued him, and on verdict for plaintiff, the question
was whether he was entitled to the whole value of the earth, or only
in proportion to his interest in it. It was admitted that there was
more brick earth left than he could use up to the end of his term,
at the rate of half an acre per year. It was held by Mansrretp, O.
J.,and Hears, J., (Cuamsre, J., contra), that the tenant was entitled
to recover the whole value of the brick earth. They said that the
lease amounted to an absolute sale of the whole brick earth, but the
tenant was not to pay for the whole, unless he used the whole.
Now supposing two actions to be brought by the tenant and the
landlord, it is clear that the sum of damages recovered must equal
the full value of the earth. But they said the landlord could only

“ recover nominal damages, because non constat that any of the earth *
would ever be left for the benefit of the reversion, as the tenant had
the right of taking it away. Nor could he suffer by so much earth,

upon which the tenant *might pay additional rent, being
taken away. Because whether it was taken away by the
tenant himself or a stranger, he would equally have a right to

[#336]

1Twyman v. Knowles, 18 0. B. 222;  * Cox ». Glue, 5 C. B. 583.
22 L. J.C. P. 143.
Insuries to Lanp. 545

recover on his covenant. If then the landlord could only obtain
nominal damage, of course the full amount must be recoverable by
the tenant. On the other hand, Cuamprs, J., was of opinion, that
the property in the extra earth remained in the lessor, subject to the
lessee’s right to purchase it at a fixed price. That the beneficial
account of the plaintiff in the earth taken by the defendant consisted
in the difference between its value and the price he must have paid
for it had he taken it himself. That all the remaining interest was
in the reversioner. Thatthe latter could maintain no action against
the lessee upon his covenant for the value of the earth taken by a
stranger. Consequently, that if the lessee recovered the whole value
he would receive so much money of his lessor’s which he could not
be made to refund.' It is clear that whichever side is right, the
principle that neither could recover more than the amount of their
interest was admitted.

Sec. 573. Reservation of rights on surface to grantor in fee.

The same principle was applied under different circumstances in
the following case. A conveyance was made in fee, subject to a
reservation to the grantor of mines and minerals, and extensive
powers of occupying and using the surface for the power of work-
ing. The grantee was bound to permit the grantor to do every thing
which was necessary for the exercise of the powers reserved to him.
On the other hand, the grantor was bound annually 1o make reason-
able compensation to the grantee for damage or spoil of ground oc-
casioned by the exercise of these powers. When a question of com-
pensation arose, it was contended on behalf of the grantor, that the
value of the ground must be taken as diminished by the restrictions
imposed upon its use. But it was held, that the grantee was at lib-
erty to use the land for any purpose to which it was applicable, so
long as he did not interfere with the minerals, and that the compen-
sation due tohim for damage occasioned by the exercise of the
powers reserved must be estimated with reference to the value of
the land for any purpose to which an ordinary owner might put it.
In other words, that the powers reserved to the grantor merely
marked out what damage he might lawfully do, if he chose to pay
for it.”

' Attersoll o. Stevens, 1 Taunt. 183. Durham, L. R., 8 C. P. 886; 42 L. J.

?Mordue v. Dean and Chapter of OC. P. 114.

69
546 Insuries to Lanp.

Sec. 574, Trespass by mining.
[#387] *We have had occasion before to examine the case of a
trespass committed by mining and carrying away the min-
erals severed. Here the most essential part of the wrong consists
in the removal of the mineral. Itis to be estimated at its value at
the time the defendant began to take it away; that is, as soon as it
existed as a chattel. This value will be the sale price at the pit’s
mouth, after deducting the expense of carrying it from the place in
the mine where it was got to the pit’s mouth, but not the cost of
severing it. Separate compensation must be given for all injury
done to the soil by digging, and for the trespass committed in
dragging the mineral along the plaintifi’s adit.? It seems, however,
that where there is a real disputed title the case is different, and the
minerals are to be valued as if the soil in which they lay had been
purchased from the plaintiff.*

Sec. 575. Prospective injury from defendant’s act.

In these cases, it will be observed, the minerals were the property
of the person who complained of the removal. Consequently, where
the trespass was willful, the trespasser was not entitled to deduct the
cost he had incurred in effecting the unlawful act. In the following
case the element of property was wanting, and the measure of
damages varied accordingly. Land was let to a tenant, but the right
to the minerals remained in the landlord, who, however, could not
get them without the tenant’s consent. The trespass complained of
consisted in his getting them without consent. It was held that
the tenant had an absolute veto on the landlord’s right to the min-
erals, and that the value of that veto was the value of the minerals,
less so much money as would induce a third person to get them, that
is, the measure of damages would be the net returns from the sale,
less such asum of money; by way of profit, as would induce a third
person to undertake the enterprise.“ Here, it is obvious, what the
tenant had to sell was, not the property, but the right to make a profit
out of the property.

1 Ante, p. 494. 15 Eq. 46; Jegon ». Vivian, L. R.,6

2 Morgan v0. Powell, 3 Q. B. 278; Ch. 742;40 L. J. Ch. 889; Job 0. Pot-
Martin o. Porter, 5 M.& W.352; Wild ton, L. R., 20 Eq. 84; 44 L. J. Ch.
».Holt, 9 M. & W. 672. 262.

* Per Parke, B., 9 M. & W. 673; 4 Att.-Gen. ». Tomline, 5 Ch. D, 750;

Wood v. Morewood, 3 Q. B. 440, n.; 46 L. J. Ch. 654,
United Merthyr Collieries Co., L. R.,
Iysurtes to Lanp. 547

Another question which has been adready discussed is, when pro-
spective loss arising from an injury to land may be allowed for, and
when it may not. The rule is that when such *prospective
loss may be the subject of a fresh action when it occurs, it
cannot be allowed for beforehand, and vice versa.1 The former is
the case when the act complained of is a continuing trespass upon
the plaintiffs land, as, for instance, an unauthorized erection upon
it;’ or is a continuing nuisance to it. Accordingly, a former re-
covery is no bar to any number of subsequent actions as long as the
same cause continues; otherwise the defendant would be purchas-
ing a right to commit a wrong.’ And it makes no difference that
the defendant has no power to enter upon the land in question to
remove the source of complaint, and that he would be a trespasser
if he did so.” For the same reason, viz., that a continuing tres-
pass is a fresh ground of action every day, if part of the time
during which the trespass was continued is beyond the period of
limitation, damages can only be recovered for the trespasses within
such period.*

The contrary rule obtains where the original wrong consists of a
single injury, or act of destruction. Accordingly, where the de-
fendant had made'an aperture in the plaintiff’s mine, through which
the water kept continually flowing into, and drowning it, it was
ruled that no fresh action could be brought for loss accruing subse-
quently. The damages in the first action for making the aperture
must be taken to have been a full compensation, not only for the act,
but for all the consequences which could arise from it.’

[*388]

Sec. 576. Co-trespassers.

Where the defendant is one of a number of co-trespassers, as a
member of a hunt, he is liable for the whole of the damage done,’

1 Ante, pp. 134, 140.
. ® Holmes o. Wilson, 10 A. & E.
503.
® Shadwell 2. Hutchinson, 4 C. &
P. 333; Thompson ». Gibson, 7 M. &
W. 457.
4Id. It follows that evidence can-
not be given of the diminution in
salable value of the premises in con-
sequence of the nuisance, because the
plaintiff, after recovering for such
diminution, might bring a fresh action,

for the continuance of the nuisance.
Battishill 7. Reed, 18 C. B. 696; 25 L.
J.C. P. 290. In a second action a jury
will be justified in giving such damages
as may compel the defendant to abate
it. Id., per Jervis, C. J., Shadwell v.
Hutchinson, supra.

> Thompson 2. Gibson, ubi sup. ~

6 Wilkes v. Hungerford Market Co.,
2 Bing. N. C. 281.

7 Clegg v. Dearden, 12 Q. B. 576.

8 Hume ». Oldacre, 1 Stark. 280.
548 Insvuries to Lanp.

but not for any malicious motive which may have actuated any
others of the party.’

'

Sec. 577. When consequential loss may be allowed for as substantive dam-
ages.
Consequential loss resulting naturally from acts which are
n themselves part of the trespass, may be proved as sub-
stantive damage, though it might be sued for as a distinct ground of
action; for instance, infection caught by plaintiff’s cattle from the
entry of diseased cattle into his land;* but where in trespass for
breaking the plaintiffs house, evidence was offered that his wife was
so terrified by the defendant’s conduct that she took ill and died,
this was received not as a ground for substantial damage, but merely
as showing the violence of the defendant’s conduct.’ Such an event
could not be treated asa natural result of the trespass. Nor can any
greater effect be given to loss arising from circumstances which are
in themselves only matter of aggravation, and not part of the tres-
pass. Trespass was brought for breaking and entering plaintiff's
dwelling-house, and, under a false and unfounded charge that
plaintiff had stolen property in her house, searching the same,
whereby the plaintiff was not only interrupted in the enjoyment of
her dwelling-house, but her credit was injured by reason of a belief
excited among her neighbors that she was a receiver of stolen goods.

[*389] ,.

1 Clark v1. Newsam, 1 Ex. 131, 139.

Where an action is brought against
one of several trespassers, the dam-
ages should not be restricted to that
done by him, and they should be such
as the most culpable of them ought to
pay. Bell o, Morrison, 27 Miss. 68;
Ricker », Freeman, 50 N. H. 420.

2 Anderson 2. Buckton, 1 Str.
192.

The plaintiff, in an action of tres-
pass for dumages to his store, has a
right to more than the rent of the
building during the interruption of its
use as damages; he is entitled to such
further sum in addition to a compen-
sation for the injury done to it, as will
compensate him for loss of enjoyment
of the building while the interruption
continued.

For this purpose itis competent to
prove the nature and extent of the
business, the necessity of using the
building for its prosecution and the

value of such use to him during thein-
terruption.

Inthe absence of fraud, malice, or
other circumstances justifying the re-
covery of exemplary damages, the
amount of profits which might have
been realized by employing his per-
sonal services and capital in his busi-
ness during such interruption, cannot
be recovered.

In such case the loss of profits does
not furnish a proper rule for estimat-
ing damages; but the loss of the use of
the property, and the value of such use
to the injured party, is all that can be
recovered, Cincinnati v. Evans, 5 Ohio
St. 594.

See, also, Jolly v. Single, 16 Wis.
280, where it was held that, in an ac-
tion for entering the plaintifi’s mill and
removing the machinery, the expense
of replacing it was not the true meas-
ure of recovery.

° Huxley v. Berg, 1 Stark. 79.
Insurmes to Lanp. 549

Two objections were taken. First, to the declaration, as uniting
charges of trespass and slander which have different periods of lim-
itation. Secondly, to the summing up of the judge, who had told
the jury that if they believed the plaintiff's witnesses, he thought
there was something very like a charge of having stolen goods in
her house, and if so the damages undoubtedly ought not to be
merely nominal. But Lord Exruensoroves said, “ As to the excep-
tion taken to the declaration, the trespass is the substantive allega-
tion, and the rest is laid as a matter of aggravation only. On the
other point it does not appear that the learned judge told the jury
that they might go beyond the damages for the trespass, and con-
sider the rest as a subject of substantive damage, or in any other
wise than as connected with the trespass, and that is the constant
course of considering it. In actions for false imprisonment, the jury
look to all the circumstances attending the imprisonment, and not
merely to the time for which the party was imprisoned, and give
damages accordingly. So here, the breaking and entering the plain-
tiffs dwelling-house for the purpose of searching it, and under
the false charge, *constitutes the trespass, and the false [#390]
charge was not left as a distinct and substantive ground of
damage.”

Sec. 578. Several trespasses.

On the other hand as many acts as the plaintiff chooses may be
joined in the declaration, and allowed for as substantive damage
when they are themselves trespasses ; for instance, entering his land
and carrying away his trees, or chasing and killing his cattle,’ or de-
bauehing his daughter.* But in such a case each act must be laid
with all the legal requisites to form a ground of action. Therefore,
in trespass for entering the plaintiff's dwelling-house and taking
away certain goods there, it was held that no damage could be given
in respect of the goods, as there was no allegation that they were the
property of the plaintiff.*

Sec. 579. Vindictive damages.
In actions of trespass, even where there is no special damage, the
jury are not limited to the actual injury inflicted, but may take all

1 Bracegirdle 2, Orford, 2 M. &S. * Bennett v. Allcott, 27. R. 166.

77, 79. ‘ Pritchard ». Long, 9 M. & W. 666.
2 Anderson »v. Buckton, 1 Stra. 192.
550 Insurres To Lawn.

the circumstances into consideration: 5002. were held not to be ex-
cessive damages where the defendant, a man of rank, persisted in
entering upon the plaintiff’s land, and shooting his game, though
required to desist, and conducted himself in other respects in a violent
and abusive manner.!

Sec. 580. Compensation for acts done by authority of parliament.

Injuries to land frequently arise from the operations of public
companies, acting within the powers given them by their acts. In
all snch cases provisions are made for giving compensation to the
parties injured. The most important of these provisions are con-
tained in the Lands Clauses Consolidation Act, 8 Vict., ch. 18, which
is incorporated with every act authorizing a public company to pur-
chase or take land for its undertaking. These statutory provisions
for making compensation for lands taken or injuriously affected
under the authority of parliament do not come properly within the
‘scope of this treatise, and the cases decided upon them, and upon
analogous clauses contained in other acts, are now so numerous and
important that it has been thought useless to attempt to discuss them
within the limits which must be assigned to them here.
*The reader is therefore referred to works in which the sub-
ject is specially considered.

[*391]

“1 Merest v. Harvey, 5 Taunt. 442. reduction of damages. See per ERLE,
On the other hand, evidence of asserted C. J., Skull o, Glenister, 16C. B. (N.
title would seem to be admissible in §&,) 103; 33 L, J, C, P. 188,
Mesne Prortrs. 551

CHAPTER XXIV.
MESNE PROFITS.

Src. 581. Mesne profits. Against whom it may be brought.
582. Entry relates back to origin of title.
583. Effect of judgment in ejectment.
584. Damages.
585. Costs of previous ejectment.
586. Payments in reduction of damages. Improvements.
587. Mesne profits may in some cases be recovered in ejectment.
588. Executions.

Sec. 581. Mesne profits. Against whom it may be brought.

The action for mesne profits is in origin an action of trespass,
brought after a judgment in ejectment,! to recover damages for the
previous occupation of the land. It may be brought either against
the person actually in possession of the land, at any time during the
existence of the plaintifi’s title, though only a tenant’ or servant of
the original ejector ;° or against his landlord who let him into pos-
session, though such landlord be himself a tenant of the plaintiff,
and his underlessee has held over against his will.‘ But when the
ground of the action is the bare fact of possession, damages can only be
recovered for the time possession was actually retained,’ and in no
case can the plaintiff claim for any period subsequent to an offer by
the defendant to restore him possession.*

Sec, 582. Entry relates back to origin of title.

There are several instances in which the party entitled to posses-
sion cannot maintain trespass before entry; as a lessee for years,’
heir, reversioner, purchaser, or disseisee,° assignee,’ or a parson before
induction.” But execution of the writ of possession, or actual pos-

1 Under the present procedure it can
be joined with the action for the re-
covery of the land. Ord. 17, R. 2.

* Holcomb v. Rawlyns, Cro, Eliz. 540.

3 Girdlestone v. Porter, Woodf.L.&
T. 653, 7th ed.; by Harrison and Horn.

4Ibbs v. Richardson, 9 A. & E. 849;
Doe v. Harlow, 12 id. 40.

5Girdlestone v. Porter, wbi sup.
69 A. &E. 853.

™Bac. Abr. Lease, M.

®Com. Dig. Trespass, B. 3.

9 Cook ». Harris, 1 Ld. Raym. 367,
102 B. & A. 470.
552 Meswe Prorrts.

session taken after a judgment in ejectment, entitles the plaintiff to
recover damages for any period over which he can prove a right to
possession, even prior to the day of demise laid in the declaration
under the old form. The reason is, that the entry when made relates
back to the origin of the title, and all who occupied in the mean-
time, by whatever title they came in, are answerable to him for
their occupation. But where the party in possession is not a tres-
passer at all, until his title is made void by entry, as where he holds
[#399] against the reversioner or remainderman by virtue of a fine

levied by tenant for life, mesne profits can only *be recovered
from the date of such entry.” Even in equity it seems there is no
remedy.*

Sec. 583. Effect of judgmentin ejectment.

By 15 & 16 Vict., ch. 76, § 207, the effect of a judgment in eject-
ment under the form of proceeding given by that act was the same
as that of a judgment in the action of ejectment previously in use.
Such a judgment then, when pleaded,‘ was conclusive as to the right
to possession against the defendant in ejectment, and all persons
claiming under him up to the day on which title is laid. For any
damages claimed previously to that day, strict proof of title was
necessary.”

Sec. 584. Damages.

Damages in this action are not confined to the mere rent of the
premises, but the plaintiff may recover for the trouble and expense
he has been put to. And Govto, J., said that he had known four
times the value of the mesne profits given by a jury in this action.
So any consequential damage may be recovered ; as for instance, the
loss which the plaintiff has suffered by the defendant’s shutting up

' Holcomb v. Rawlyns, ubi sup ; per 22 L. J. C. P. 241; Wilkinson ». Kirby,
Cottman, J.. 5 M. & Gr. 764,774; 150. B. 430; 23L.J3.C. P 224. Tt
Barnett ». Earl of Guildford, 11 Ex. was held that a county court order for

19; 24 L. J. Hx. 281, 294. giving up possession, made under 19
*Compere v, Hicks, 7 T. R. 488; & 20 Vict., ch. 108, § 50, had not an
Hughes v. Thomas, 13 East, 474. analogous effect; Campbell 0. Loader,

* Reynolds v. Jones, 2 Sim. & Stu. 38H. & C. 520; 34L. J. Ex. 50.
206; Dormer v. Fortescue, 3 Atk. 124, > Aslin v. Parkin, 2 Burr. 665.
contra. *Goodtitle ». Tombs, 3 Wils. 121:
* Matthew 0, Osborn, 13 C. B, 919; 3 T. BR. 547, 8. P, :
Messner Prortts. 5538

an inn, which was the subject of the ejectment, and destroying
the custom. Such damage, however, must be specially laid.!

Where no evidence is given as to the length of time during which
the defendant was in possession, no more than nominal damages can
be given, and the case was the same even though a date was laid in
the declaration, not under a viz., and judgment went by default ;
for the date was not material or traversable, and therefore not
admitted.’

Sec. 585. Costs of previous ejectment.

One common ground of damage used to be the costs of
*ejectment, which, under the form of fiction then in use,
could not be recovered in that action when the landlord or tenant
did not appear, or having appeared, did not confess lease, entry, and
ouster at the trial.* In respect to these the rule laid down was, that
where the judgment was taken in such a form as admitted of the
costs being taxed, those costs alone were recoverable, and no extra
costs, though bona fide, incurred." The apparent exceptions to this
rule were in cases where costs could not be taxed; for instance,
where judgment obtained by the defendant had been reversed in error,
where a court of error could not award costs ;° or where judgment
had gone by default, in which case it was not the practice for the
officers to tax against the casual ejector." In the latter case there
seems now to be no objection to signing judgment and taxing costs
against the real defendant, as his name appears on the record.’ The
former case also no longer stands on its original footing. The court of

[*393]

1 Dunn o. Large, 3 Dougl. 335.

2Ive v. Scott, 9 Dowl. 993. The
effect of judgment by default in eject-
ment, as evidence of the defendant’s
possession, in an action for mesne
profits, was discussed recently in the
Court of Exchequer. Keuzy, C. B.,
was of opinion that taken alone it was
no evidence of the defendant’s posses-
sion at any time. CHANNELL, B., and
CieasBy, B., considered it to be
prima facie evidence that the defend-
ant was in possession at the date of
the writ of ejectment, but not evi-
dence of his possession for the period
during which the plaintiff claimed
title to the writ; Pearse v. Croaker, L.
R., 4 Ex. 92; 38L. J. Ex. 82.

70

3Tidd’s Prac., 9th ed., 12438. An
allegation in the declaration that the
plaintiffs had incurred great expense in
recovering possession, was held to sup-
port a claim for the costs of previous
ejectment; Pearse v, Croaker, supra.

4Doe vo. Davis, 1 Esp. 358; Sy-
monds v. Page, 1C.& J. 29; Doe »o.
Filliter, 18 M. & W. 47; Brooke v.
Bridges, 7 Moore, 471; Doe v. Hare,
2 Dowl. 246.

5 Nowell v. Roake, 7 B. & C. 404.

6 Doe v. Huddart, 2 C.M. &.R. 316.

"See 15 & 16 Vict., ch. 76, §§ 17%,
206. Ord. 18, R. 7. The costs would
be in the discretion of the court, un-
der Ord. 55.
554 Mesne Prortts.

appeal has a discretion as to costs,' and the party ultimately prevail-
ing will, as a general rule, get the costs of his appeal as well as the
costs below.” There are express provisions in the Common Law Pro-
cedure Act, 1852, that where the defendant confesses the action’ or -
judgment is given against him,* execution may issue for costs as well
as for the recovery of possession. In none of these cases then is it
likely that costs will for the future be sued for in action for mesne
profits.

Sec. 586. Payments in reduction of damages. Improvements.

If the defendant has made any payments while in possession, for
which plaintiff would be liable, as ground rent or rates and taxes, he
is entitled to have it taken in reduction of damages.’ In America
#304) the courts go much further. There *a bona fide occupant of

land is allowed to mitigate damages in an action by the right-
ful owner, by setting off the value of his permanent improvements,
made in good faith, to the extent of the rent and profits claimed.*
This doctrine, however, has never been ‘asserted in England as far
as [am aware. In one case where a party had permitted buildings
to be erected upon his property, by a person who acted under a
mistaken impression that the land was his own, a court of equity
restrained an action for mesne profits by injunction, in order to com-
pel the plaintiff to allow the value of the buildings as a set-off.’
This in itseif shows that the defendant would have had no claim for
compensation at law, and even in equity the argument in his favor
rested on the fact that the plaintiff had stood by and countenanced his
acts, which amounted toafraud upon him. Nor does the doctrine
seem well founded, as a mere matter of natural justice. The improve-
ments may be very valuable, but they may be quite unsuited to the
use which the plaintiff intends to make of his land. Even if they
are such as he would have wished to make, they may also be such as
he could not have afforded to make. To compel him to pay for them,
or to allow for them in damages, which is all the same, is quite as

1 Ord. 58, R. 5. ber x Brown, 1 C. B. (N. 8.) 121;
*Memorandum, Ch. D. 41. 26 L. J. 0. P. 49. :
3S, 208. ® Morrison v. Robinson, 31 Penn. St.
483 185, 197. 456; Anevill ». Brady, 20 Ga. 523.

® Doe v. Hare, 2C. & M. 145; Bar- F a orate (Earl of) ». Lewis, 1 Y. &
» 427,
Mesne Prortrs. 555

unjust as it would be to lay out money in any other investment for
a man, and then compel him to adopt it, nolens volens.

It was no answer to this action that the plaintiff had entered a
remittitur damna upon the record in the action of ejectment.'

Sec. 587. Mesne profits may in some cases be recovered in ejectment.

Where ejectment was brought by landlord against tenant, and due
notice of trial had been served on the tenant or his attorney, the
plaintiff might go into evidence of mesne profits, and obtain a ver-
dict for them down to the time of verdict given; even though the
record contained no notice that the demand would be made.* But
such recovery was no bar to an action for mesne profits from the
time of verdict to delivery of possession.’

Sec, 588. Executors.

Formerly executors could not sue or be sued in this action; but
now it seems they may by 3 & 4 W. IV, ch. 42, § 2, *pro-
vided the action be brought by the executors or administra-
tors within a year after death, and for injuries committed within six
calendar months before death; and similarly as to actions agaist
executors or administrators, except that the action must be com-
menced within six months after they have taken upon themselves
the administration of the estate.

[*395]

1 Harper 0. Eyles, 3 Dougl. 399. 315 & 16 Vict., ch. 76, § 214.
2 Smith o. Tett, 9 Bx. 307; 23 L. J.
‘Ex. 93.
556 Insurizs To EAsEMENTS.

CHAPTER XXV.

INJURIES TO EASEMENTS.

Src. 589. When it is necessary to prove actual damage.
590. Actions by reversioners, etc.
591. When actual damage must be proved.
Sec. 589. When it is necessary to prove actual damage.

In actions for injuries to easements, such as rights of way, water-
courses, light, common, and.so forth, no rule can be laid down as to
the measure of damages. They will vary in each case, according to
the species and amount of injury caused. Frequently, however,
such actions are brought where no actual injury has been suffered,
to try a right; and the question is, whether the plaintiff is entitled
to nominal damages.

In such cases the rule may be laid down, that where an actual
infringement of right has taken place an action will lie, and the
plaintiff will be entitled to a verdict with nominal damages, though
no real loss has been sustained. Hence in actions by commoners
against strangers for interfering with their rights of common ;! or
by the owners of lands and houses, for violation of their rights of
ways, water-courses, light and air," thereis no necessity to show any
actual or substantial damage resulting from the act complained of.
Wherever a right has been violated, the law will presume damage,
and the mere fact that such acts, if submitted to, would lay the
foundation of a fresh right in the wrong-doer, adverse to the original
proprietor, is itself support for an action.* A strong instance of this
doctrine arose in the following case. By deed between plaintiff and
defendant, owners of adjoining closes, it was agreed that during the
first ten days of every month the defendant should have the exclu-
sive use, for purposes of irrigation, of the waters of a stream which
flowed through his lands to the plaintiff's. That at all other times
the water should be under the plaintifi’s control, and that it should

11 W. Saund. 346, a; 1 Wms. Notes Junc, Canal Co., 7 Ex. 282; Rochdale
to Saund. 626; Wells ». Watling, 2 Canal Co. v. King, 14 Q. B. 122;
Bl. 1283; Hobson ». Todd, 4T.R.71; Rochdale Canal Co. v, Radcliffe, 18 Q.
Pindar vo. Wadsworth, 2 East, 154. B. 287.

? Embrey v, Owen, 6 Ex. 353; Bower $1B. & Ad. 426, per Taunton, J.;

#. Hill, 1 Bing. N. C. 549; Wood ». Harrop v. Hirst, L. R., 4 Ex. 48; 38
Waud, 3 Ex. 748; Dickinson » G. L.J. Ex. 1. :
Insurtes to Easements. 557

flow upon his land through the defendant’s in *a channel
specifically described. Defendant altered the stream in its
course through his own land, by cutting a new channel. The stream,
however, entered the plaintifi’s land at exactly the same point as
before, and in the same quantity. No damage of any sort arose.
It was held, however, that under the terms of the deed the plaintiff
had a right to have the stream flowing in the specified channel, and
was entitled to nominal damages.’

Such legal damage, however, will only be presumed where there
has been a clear violation of a right. The facts from which it will
be presumed differ greatly according to the subject-matter of the
right, and the nature of the interests of the parties in it. For
instance, commonage is a matter of private and exclusive right.
Any assertion of the same right by an unauthorized person is an
injury for which an action will lie. But light, air and water are
matters publici juris, which cannot be monopolized; all may use
them who have a right of access to them, and an action only lies for
such an unreasonable use as deprives the plaintiff of his just benefit
from them in turn.’

Tn case of injuries to easements, as in the case of trespass to land,”
the amount of damages awarded will vary, according as they are a com-
pensation for all future loss arising from the act complained of, or
only a compensation for the loss actually incurred up to the date of
the action. Hence there is often a difference between the damages
given for injury to air or light, and the damages for injury to water.
Violations of right in the former class of cases generally proceed
from some permanent structural obstruction ; those of the latter
class from some cause which varies day by day, and which may
cease or increase. Where such a distinction exists, damages’ for
obstruction to light and air would represent the depreciation in the
value of the injured property, and would be a complete compensa-
tion, once for all, for the injury done. But in the case of an injury
to running water, the damages given would only represent the past
injury to the plaintiffs rights, and would consequently be no com-
pensation for any future injury.*

[#396]

1 Northam »v. Hurley, 1 E. & B. id. 877; Wells ». Ody, id. 410;
665. Williams ». Morland, 2 B. & C. 910.

2 Embrey ». Owen, 6 Ex. 353; Wood 3 See ante, p. 547.
o, Waud, 3 Ex. 748; Taylor». Bennett, ‘Pennington v. Brinsop Hall Coal
7C. & P. 829; Pringle ». Wernham, Oo., 5 Ch. D. 769, 46 L. J. Ch. 773.
558 Insurtes To EasEMENTS.

Sec. 590. Actions by reversioners, etc.
6 *So also any act, however temporary, which disturbs the
[*397] _. A . tease ‘
occupant of land in the possession of all his rights attaching
to it, is ground for an action by him. But the reversioner can only
sue in respect of some wrong which is calculated to injure his rever-
sion; and the fact of its beipg of such an injurious character must
appear upon the record, and be proved at the trial, or be capable of
being assumed as proved after verdict.)
The same obstruction to the plaintiffs rights may be the sub-
ject of continual actions and continual damages, till it is discon-
tinued.’

Sec. 591. When actual damage must be proved.

In some cases, however, actual damage constitutes the gist of the
action, and must be stated and proved. This takes place where the
wrong complained of is one of a public nature, which can only be-
come ground of action by an individual upon proof of actual dam-
age to himself resulting from it.’ But though particular damage
must be shown and established, it is neither necessary to lay, nor to
prove, special damage in its technical sense. As, for instance, where
the injury consisted in obstructing the access to plaintiff's house,
and consequent loss of, trade, it was held not to be necessary to
show the specific customers who were hindered. The injury to
the plaintiff must, however, be direct and of a substantial char-
acter.*

In actions by the commoners against the lord, or any one acting
under the authority of the lord, for putting cattle upon the common,
damage must be shown. He has a right to do so, leaving sufficient
for, the commoners, and the cause of action clearly does not arise
till such damage is shown.’

* Hopwood 2.Schofield, 2M. &Rob. ford Market Co., 2 B. N.C. 281; Rose
34; Jesser v. Gifford, 4 Burr. 2141; » Miles, 4 M. & S. 101; Greasly 0.
Kidgill 2 Moor, 9 C. B, 864, See Codling, 2 Bing. 263; Winterbottom
Jackson v. Pesked, 1 M. & S. 284; ». Earl of Derby, L.R., 2 Ex. 316; 36
Young ». Spencer, 10 B, & C.145; Bell L. J. Ex. 194.

v. Midland Ry. Co. 10 C. B. (N. 8.) * Rose v. Groves, 5 M. & Gr. 613.
287; 30 L. J. C. P, 2738; Metropolitan * Benjamin ». Storr, L. R., 9 ©. P.
Association », Petch, 5 0. B. (N. 8.) 400;48 L. J.C. P. 162,
504; 27 L. J. C. P. 330; and ante, p. ° Hobson ». Todd, 4 T.R.73; per
542. Butter, J., 1 W. Saund, 346, b.; 1 Wms.
2 Vide ante, p. 141. Notes to Saund. 627.
39 Rep. 113, a; Wilkes ». Hunger-
Matictous Prosxcution. 559

*CHAPTER XXVI. [*398]

MALICIOUS PROSECUTION.

Sxc. 592. Action for malicious prosecution must show damage.
593. Liability to extra costs not a ground of damage.
594. Malice.
595. Evidence of probable cause.

Sec. 592. Action for malicious prosecution must show damage.

The two previous chapters were taken up with those torts which
consist in injuries to property of a tangible nature, such as goods
or land. The present chapter will include injuries to the person, or
to the relative rights which exist between the plaintiff and some
third party. Breach of promise of marriage should technically have
been ranged among other actions on contracts. Practically, how-
ever, it is always treated as a tort, and as it is not governed by the
same principles as any other contract, no confusion is caused by con-
sidering it here.

In order to support an action for a malicious prosecution, or suit,
it is necessary to show some damage resulting to the present plain-
tiff from the former proceeding against him. This may be either
the damage to a man’s fame, as if the matter he is accused of be
scandalous, or where he has been put in danger to lose his life or
limb, or liberty; or damage to his property, as where he is obliged
to expend money in necessary charges to acquit himself of the crime
of which heis accused.1. And the damage must be one either already
fallen upon the plaintiff, or else inevitable.’

1 Per Hort, C. J., Savile v. Roberts,
1 Ld. Raym. 374.

° BN. P. 13.

A conspiracy to do an unlawful act,
and the doing of the act in pursuance
of the conspiracy, to the damage of
the plaintiff, create a good cause of
action against all the parties to the
conspiracy. A criminal proceeding by
way of indictment lies for the mere act
of conspiring, but a civil action is not

maintainable unless the plaintiff has
been aggrieved, or has sustained ‘‘ac-
tual legal damage” by some overt act
done in pursuance of the conspiracy.

Herron v. Hughes, 25 Cal. 555 ; Hutch-

ins ». Hutchins, 7 Hill (N. Y.), 104.

It is the damage and not the conspir-
acy that is the gist of the action; Tap-
pan v. Powers, 2 Hall (N. Y.), 277; and
the damage need not be specific; it is
enough, if trouble, inconvenience, or
560

Matictous Prosxcurion.

Accordingly where a declaration merely charged the preferring

[*399]

expense is occasioned. Swan »v. Sad-
dlemire, 8 Wend. (N. Y.) 676.

Therefore, if there is no damage of
any kind an action will notlie. Thus
where the defendants, after a will had
been made, conspired to secure, and
actually did secure its revocation by
the testator, it was held that no action
would lie, as no actual interest in the
testator’s property had vested in the
plaintiff, and he could not be said to
have lost any thing, or to have been
legally damaged by the act. Hutch-
ins 2. Hutchins, 7 Hill (N. Y.),
104.

There must be a legal injury, and
the act must be unlawful. If persons
merely conspire to do an act lawful in
itself, an action will not lie, even
though another is damaged thereby.
Thus, if a sheriff holding an execution
against A conspires with B to levy an
execution which he holds against A
and ©, A being a surety merely upon
the claim upon which the judgment
on which the execution is predicated,
upon the property of A only, an ac-
tion for conspiracy will not lie, for the
sheriff might lawfully levy the execu-
tion upon the property of either, or
both. Eason v, Petway,1 Dev. & B.
CN. C.) 44.

But if persons conspire to set up a
judgment that has been fully paid, as
unsatisfied, and issue execution
thereon, and cause it to be levied on
land on which a lien had been ac-
quired by the judgment when in force,
but which land has since been sold to
a third person, they are liable to the
person who had thus purchased the
land, although the execution is void,
and no valid title passes under it, be-
cause it is an injury to and acloud on
his title. Swan v. Saddlemire, 8
Wend. (N. Y.) 676.

So, where A was engaged in a trade
that was profitable, because the knowl-
edge upon which it depended was
known to but a few, and Bin A’s
absence conspired with A’s foreman
to obtain the secrets, and was thus en-
abled to set up asa rival in the busi-
ness, whereby his trade was injured

an indictment for an assault, and no evidence was given *but
the bill of indictment for the assault, with ignoramus re-

and his profits lessened, it was held
that an action would lie. Jones 2,
Baker, 7 Cow. (N. Y.) 445.

Where the plaintiff's declaration of
his cause of action set forth that he
exercised the profession of an actor,
and was engaged to perform in the
character of Hamlet, in Covent Gar-
den Theater, and that the defendants
and others maliciously conspired to-
gether to prevent the plaintiff from
so performing, and from exercising his
profession in the theater, and in pur-
suance of the conspiracy hired and
procured divers persons to go tn the
theater and hoot the plaintiff, and the
persons so hired did in pursuance of
the conspiracy go to the theater and
hoot the plaintiff, and interrupted his
performance, and prevented him from
exercising his profession, and thereby
caused the plaintiff to lose his engage-
ment and divers gains and emoluments,
and to be brought into public scandal
and disgrace, it was held that the
declaration disclosed a good cause of
action. Gregory v. Duke of Bruns-
wick, 6 M. & Gr. 205.

So, where two or more persons enter
into a conspiracy to defraud another
by fraudulent misrepresentations or
concealments, or by any fraudulent
and unlawful means, if the scheme is
carried into effect, and actual damage
results, an action will lie therefor;
Page ». Parker, 43 N. H. 368; but in
order tomake out the cause of action
there must be an active collusion and
participation in the scheme or its exe-
cution shown; Brannock »v, Boulden,
4 Ired. (N. C.) 61; Davenport v.
Lynch, 6 Jones (N. C.), 545; and a
fraudulent or wrongful intent. Hinch-
man v. Ritchie, Bright. (Penn.) 148.

Thus, a fraudulent conspiracy to
cause a sane person to be confined ina
lunatic asylum, actually carried out, is
actionable; Davenport v. Lynch, ante;
but notif the defendants acted consci-
entiously, and without malice. Hinch-
man ». Ritchie, ante.

If persons conspire to entice a per-
son from another State to come into
another State, in order that he may be
Mauicious Prosrcution. 561

turned thereon, the plaintiff was nonsuited; and Mansrizzn, O. J.,
said, “I feel a difficulty to understand how the plaintiff could re-
cover in the present action, wherein he could recover no damages,
because he clearly has not proved that he has sustained any. I can
understand the ground upon which an action shall be maintained
for an indictment which contains scandal; but this contains none,
nor does any danger of imprisonment result from it; this bill was a
mere piece of waste paper. All the cases in B. N. P. 13 are directly
against this action, for the author speaks of putting the plaintiff to
expense and affecting his good fame, neither of which could be
done here. If this action could be maintained, every bill which the
grand jury threw out would be the ground of an action.” And so
in a case where the writ had been sued out against a party by mis-
take, and no arrest or imprisonment ever actually took place, but the
party of his own accord paid the bailiff and put in bail, nonsuit
was ordered.” =

Sec. 693. Liability to extra costs not a ground of damage.

But the liability to pay extra costs beyond those which can be re-
covered on taxation is not a damage recognized in law ; consequently
where a declaration stated that defendant in the name of J.S.,
whom he. knew to be insolvent, maliciously, etc., sued the plaintiff,
in which action J. S. was nonsuited, and proceeded to allege that
the now plaintiff was forced to pay the costs which he was unable
to recover from J. §., who was and is unable to pay the same; the
court held the declaration bad for want of an averment that the

arrested, then an action lies therefor.
Phelps v. Goddard, 1 Tyler (Vt.), 60.
But a mere conspiracy, unless at-
tended with actual legal injury, is
never actionable. Swan v. Saddlemire,
‘8 Wend. (N. Y.) 676; Tappan v. Pow-
ers, 2 Hall (N. Y.), 277; nor unless two
or more persons are engaged in it;
Hinchman v. Ritchie, ante; State ».
Rowley, 12 Conn. 101; State v. May-
berry, 48 Me. 218; and a husband and
wife being one person in law cannot
be made liable for a conspiracy. Kirt-
ley ». Deck, 2 Munf, (Va.) 15.
Conspiracy to charge a person with
a crime is actionable; Parker v. Hun-

‘ Byne v. Moore, 5 Taunt. 187.
7

tington, 2 Gray (Mass.), 124; but an act-
ual conspiracy must be proved by com-
petent proof; Gaunce ». Backhouse,
87 Penn, St. 350; Newall v. Jenkins,
26 id. 159; but when a conspiracy is
once established the acts of any one of -
them,in pursuance of the general plan,
may be shown; Tappan v. Powers, ante ;
Moore v. Tracy, 7 Wend. (N. Y.) 229;
Bredin v. Bredin, 8 Penn. St. 81;
Eason v, Westbrook, 2 Murph. (N. C.)
829; and a verdict may be taken
against one alone. Eason »v. West-
brook, ante. And the same rules ap-
ply in actions for malicious prosecu-
tion.

° Bieten v. Burridge, 3 Camp. 139,
562 Manicious Prosrcurion.

plaintiff had applied for costs, which might be the only reason he
had not recovered them. Mavus, J., said, “In order to make the
non-payment of costs a legitimate subject of damage, it must be
shown that they are such costs as properly follow the judgment of
the court in which the action was brought; but here it does not
appear that there were any such costs, for he was entitled to none
unless he applied for them, and it does not appear he has applied.” *

For the same reason, where costs are taxed in the former
proceedings, no extra costs can be recovered as damages in
this action.’

[*400] ,

Sec. 594. Malice.

Malice and want of probable cause must also be proved,* and the
amount of damages given by the jury will always be greatly influ-
enced by the species of evidence afforded upon this point.

Sec. 695. Evidence of probable cause.

It was held in one case that a witness may, with a view to show-
ing probable cause, be asked whether the plaintiff was not a man of
notoriously bad character.‘ But the contrary doctrine has been sev-
eral times laid down. Where the action was for maliciously and
without probable cause procuring the plaintiff to be arrested on a
charge of felony, a witness was asked whether he had not searched
the plaintiff’s house upon a former occasion, and whether he was
not a person of suspicious character. Woop, B., refused to allow
the question. In actions for slander, he said, such evidence was
admissible for the purpose of mitigating the damages, and not to
bar the action, and that in this case such evidence would afford no
proof of probable cause to justify the defendant.’ So where the
action was trespass for false imprisonment on a charge of obtaining
money under false pretenses, a policeman was asked on cross-examin-

1 Cotterell v, Jones, 11 C. B. 713.

*Sinclair ». Eldred, 4 Taunt. 7;
Grace ». Morgan, 2 Bing. N. C. 534;
overruling Sandback »v. Thomas, 1
Stark. 306; Gould v. Barratt, 2M. &
Rob. 171.

* Farmer v. Darling, 4 Burr. 1971;
Gibson », Chaters, 2 B. & P. 129, The
law is settled in England that the jury
must find the facts on which the ques-
tion of reasonable and probable cause
depends, and the judge must then de-

*

termine whether the facts found do
constitute reasonable and probable
cause. No definite rule can be laid
down for the exercise of the judge’s
judgment; Lister v, Perryman, L. R.,
4H. 1. 521; 39L. J. Ex. 177. In
Scotland the question is treated as an
inference of fact for the jury. Id., per
Lord Cononsay.

4 Rodriguez. Tadmire, 2 Esp. 721.

*Newsam v. Carr, 2 Stark. 69.
Matiocrous Prosrcution. 563

ation whether he had not had the plaintiff in custody before, and
also what was her general character? Gurney, B., after consulting
the rest of the court, refused to admit the evidence, even in mitiga-
tion of damages.! And similarly where the declaration contained
counts for slander, and for a malicious arrest and imprisonment,
Azsort, C. J., refused to allow the plaintiff to give evidence of general
good character, saying that if such evidence was to be admitted on
the part of the plaintiff, then the defendant must be allowed [#401]
*to go into evidence to prove that the plaintiff was a man of
bad character.”. This was a particularly strong case, for the defend-
ant had pleaded in justification, averring the charge of felony to be
true. In a later case, where the action was for giving the plaintiff in
charge, on the ground of his having stolen oysters from the defend-
ant’s bed, evidence was offered of a previous conviction of a third
party for the same offense. The defendant, however, was not aware
of such conviction at the time he gave the plaintiff into custody.
The court decided that the evidence was properly rejected on that
account. Poxtocg, C. B., in delivering the judgment of the court,
said, “The only ground on which the defendant could use any evi-
dence for the purpose of showing that he was acting bona fide, was
with reference to the impression that the conviction would make
upon his own mind, and not as to the fact itself. It was for this
purpose perfectly competent for the defendant to prove that he had
been informed of the conviction, and to show all that had been laid
before him on which he might form an opinion upon the subject.
But in this case the conviction itself never had been laid before him;
he was not present at the trial; it could never have produced any
effect upon his mind. We are of opinion, therefore, that it is very
properly rejected, although on the other ground which I have men-
tioned, it might undoubtedly have been received for the purpose of
establishing, bona fide, a sincere opinion, on the part of the defend-
ant, that the plaintiff himself had been guilty of felony.”* Of
. course if the previous conviction had been of the plaintiff himself,
the evidence would have been admissible a fortiori. This seems to
bear strongly upon the points under discussion. There is no doubt a

1 Downing v. Butcher, 2 M. & Rob. 3 Thomas v. Russell, 23 L. J. Ex.
374 233; 9 Ex. 764.

2 Cornwall v. Richardson, Ry. & M.
305.
564 Matictous PRrosecurion.

distinction between evidence of general bad character, and a pre-
vious conviction for exactly the same offense as that charged under
a mistake. The latter fact probably affords a stronger presumption
of guilt than the former. Yet if a person, who has erroneously
charged another with burglary, may show that he was in fact pre-
viously convicted of burglary, it is hard to see why he may not also
show that he was well known asa thief and associate of burglars.
[*409] Such evidence would certainly be *a much stronger justi-

fication of the charge, than it would be to show that a third
party had previously committed a burglary in the defendant’s house,
and been convicted of it. It shows a fair reason for suspecting the
plaintiff, whereas evidence, such as that in the case alluded to,
merely shows ground for suspecting the world in general of a capac-
ity for the particular crime, and a tendency to it.

Cases of this sort vary so much according to the nature of the
charge preferred, or action brought, and according to the rank and
motives of the parties, that the damages are always a mere matter
of speculation. The talents of the counsel, the temper of the jury,
and the view taken by the judge, have a greater influence upon
their amount than any principles of law that can be laid down.
Evipence in Actions ror Mauicious Prosrcutions. 565

CHAPTER XXVII.

EVIDENCE IN ACTIONS FOR MALICIOUS PROSECUTIONS.

Sec. 596.

597.
598.

599.
600.
601.
602.
608.
604.

605.
606.
607.

608.

609.
610.

611.

612.
613.

614.

615.

616.
617.
618.
619.

As tothe proofs on part of plaintiff in actions for malicious pros-
ecutions.

The prosecution and acquittal must be proved.

Proof that defendant was the prosecutor.

Proof of charge and dismissal before the magistrate.

If there be probable cause the prosecutor is protected.

Where the proceedings are by the act of the magistrate.

Probable cause, how found.

Evidence of the absence of reasonable and probable cause.

Malice.

Disbelief of party making the charge.

Proceedings in bankruptcy without probable cause.

Positive evidence necessary to show that prosecution was ground-
less.

Effect of abandoning the prosecution. :

Absence of probable cause a strong presumption of malice.

Distinction between institution of a prosecution and its continu-
ance by an agent.

Proofs on the part of the defendant.

Mere suspicion no sufficient defense.

Evidence of the existence of reasonable and probable cause.

Evidence of reasonable and probable cause.

Deliberation of jury.

If probable cause exists, action cannot be maintained.

Proof of the offense charged.

Evidence of character.

Evidence as to the plea of justification.

Sec. 596, As to the proof on the part of the plaintiff in actions for malicious
prosecutions.

The proofs in an action for a malicious prosecution are, Ist, of
the prosecution: 2ndly, of the defendant’s malice, and the want of
probable cause; 3rdly, of damage to the plaintiff.

Ist. A. prosecution by the defendant, from which the plaintiff has
been discharged. If the prosecution was in the queen’s bench, at.
the assizes or quarter sessions, the fact of prosecution and acquittal
566 Eviwence w' Actions ror Maticious PRosEcuTIons.

must be proved in the usual way ; formerly by the production of the
record or proof of an examined copy of it:! but now it is not neces-
sary to produce the original indictment or record of the conviction
or acquittal, or a full copy thereof; but it is sufficient that it be cer-
tified, or purport to be certified under the hand of the clerk of the
court, or other officer having the custody of the records of the court
where such conviction or acquittal took place, or by his deputy, that
the paper produced is a copy of the record of the indictment, trial,
conviction, and judgment, or acquittal, as the case may be, omitting
the formal parts thereof.’ 8

Where an indictment had been preferred against the plaintiff and
another, and a copy had been obtained on behalf of the latter only,
it was held that the plaintiff was entitled to use it in evidence, and
the court would not inquire by what means it had been obtained.
It was also held that misconduct on the part of the defendant
toward the other party indicted was evidence, as part of the res
geste, and as tending to show the malice of the defendant. The
court also held that it was no bar to the plaintiff’s recovering, that
a rule for a criminal information had been obtained but not pro-
ceeded in.*

- Sec. 497. The prosecution and acquittal must be proved.

It must appear that the defendant caused the prosecution to
be instituted, and that the plaintiff was acquitted of the charge,*
or that there was a termination of the same in his (plaintiff's)

1 See Clayton v. Nelson, B. N. P. 13;
Kirk ». French, 1 Esp. 81; Morri-
son v. Kelly, 1 W. Bl. 385; Legatt o.
Tollervey, 14 Hast, 302; Jordan ».
Lewis, 2 Str. 1122; and Ford’s MS.

214 & 15 Vict., ch. 99, § 13. The
original warrant with an indorsement
thereon by the magistrate, of an ac-
- quittal of the plaintiff, is evidence of
the acquittal. Dougherty v. Dorsey,
4 Bibb (Ky.), 207; Dreux». Domec, 18
Cal. 88. A memorandum made by the
magistrate of the acquittal is evidence
thereof. Long v. Rodgers, 19 Ala.
321; a report of ‘‘no bill,” by a grand
jury; Woodruff v. Woodruff, 22 Ga.
237; Huidekoper ». Cotton, 3 Watts
(Penn.), 56; or a certified copy of any
record thereof; Sayles v. Briggs, 4
Metc. (Mass.) 421; Katterman ». Stit-
zer, 7 Watts (Penn.), 189; but the

record must be made by a court that
had jurisdiction of the case. Bixby.
Brundige, 2 Gray (Mass.), 129. But
the record of acquittal has no effect
beyond that of establishing the fact
of acquittal. It does not operate even
as prima facie evidence of want of
probable cause; Roberts v. Bayles, 1
Sandf. (N. Y.) 47; nor bill re-
turned ‘‘not found” by grand jury,
Fulmer v, Harman, 8 Strobh. (S. C.)
576; nor neglect to prosecute; Gorton
v. De Angelis, 6 Wend. (N. Y.) 418;
Frederick v. Halberstadt, 14 Rich. (8.
C.) 41. The fact of want of probable
cause must be proved affirmatively.
Gorton ». De Angelis, ante.

oa Caddy ». Barlow, 1 Man. & Ry.

‘ Hunter o, French, Willes, 517.

*
Eviwence in Actions ror Matnicious Prosroutions. 567

favor.' This rule, however, does not apply to cases where the
action is brought for proceedings which are ex parte ; such as mali-
ciously exhibiting articles of the peace, or requiring the plaintiff to
find sureties of the peace; because in such cases, the oath of the
defendant being incontrovertible, such proceedings must of necessity
end unfavorably to the plaintiff. And accordingly, a plea which
attempted to justify such proceedings, on the ground that the
defendant entirely succeeded in the prosecution against the plaintiff,
was held bad on demurrer.’ It is not sufficient to prove that the
proceeding was stayed by the nodle prosequz of the attorney-general ;°
otherwise if he had pleaded “Wot Guilty,’ and the attorney-
general had confessed it;* but it is sufficient that the party was

acquitted upon a defect in the indictment.°

Sec. 498. Proof that defendant was the prosecutor.

Some proof ought to be given of the identity of the plaintiff
with the party prosecuted: and it must be proved that the defendant

1 Barber »v. Lesitor, 7 C. B. (N. 8.)
175; 29 L. J. OC. P. 161; Anderson ».
Buchanan, Wright (Ohio), 725; Davis
». Cook, 8 Greene, 539; Vanderbilt
». Mathis, 5 Duer (N. Y.), 305; Stewart
». Thompson, 51 Penn. St. 158;
Turner v. Walker, 3 G. & J. (Md.)
377. An action brought before the
prosecution is ended is premature, and
the fact that the plaintiff has been dis-
charged on habeas corpus is not-enough.
Walker v. Martin, 43 Ill. 508 The
prosecution must be fully and finally
ended so far as the particular com-
plaint is concerned. If it is still pend-
ing in any form, the action is prema-
ture. Id.

2 Steward vo. Gromett, 7 C. B. (N. 8S.)
191; 29 L. J. ©. P. 170; and see
Whitworth ». Hall, 2B. & Adol. 695.
See, also, Chap. XIV, “ Occasion:
Probable cause,” p. 301 e¢ seg., and p.
365 ef seq.

3 Goddard v. Smith, 6 Mod. 262; for,
notwithstanding the nolle prosequi,
fresh process may be sued out upon
the indictment. Id. Per Lord Hout;
but it was said that there had been no
instance of any further proceeding
after a nolle prosequi. Id. 8. C., Salk.
21. Note that the declaration alleged
an acquittal, but the court held that

the entry of a nolle prosequi did not
amount to an acquittal.

4 Td.

5 Wicks v. Fentham, 47. R. 247;
Pippett ». Hearn, 5 B. & Aid. 634,
A return of ‘‘no bill” by the grand
jury, and discharge by the court is
sufficient; Woodruff ». Woodruff, 22
Ga. 237; Huidekoper v. Cotton, ante ;
or when a suit is voluntarily discon-
tinued, but not if non pros. or nonsuit
is entered. Burhans v. Sandford, 19
Wend. (N. C.) 417. The dismissal of
a prosecution is also treated as an end
thereof. Johnson v. Martin, 3 Murph.
(N. C.) 248; Bostick v. Rutherforth,
4 Hawks (N. Y.) 83. But in Massa-
chusetts it is held that the termination
of a prosecution by nolle pros. is not
such a termination of the prosecution
as will warrant an action, Brown v.
Lakeman, 12 Cush. (Mass.) 482; Par-
ker v, Farly, 10 id. 279; but if a dis-
charge is entered by the court, it is
held sufficient in Indiana, Chapman ».
Woods, 6 Blackf. (Md.) 504; also so
held in Nisi Prius case in New York,
Moulton ». Beecher. A discharge
entered because the parties settled is
not enough. McCormick »v. Sisson, 7
Cow. (N. Y.) 715.
568 Evmwenor mw Actions ror Maticiovs Prosxcurions.

was the prosecutor. The indorsement of the party’s name as a wit-
ness on the bill of indictment is no evidence that he was the
prosecutor.!

Where the defendant merely acted as a magistrate, the proof of
his name on the back of the indictment, as prosecutor, will’ not
render him liable. The proper evidence to establish the fact is,
that the defendant employed an attorney or agent to conduct the
prosecution; that he gave instructions concerning it; paid the
expenses; procured the attendance of witnesses, or was otherwise
active or instrumental in forwarding the prosecution. It has been
said that a grand juror may be called to prove that the defendant
was the prosecutor;* this, however, appears to be doubtful. But
where the proceeding was before a magistrate he may be called to
prove it.’

Where the defendant’s son, a youth about seventeen or eighteen
years of age, in his employ, caused a servant, whom he suspected of
obtaining money by false pretenses, to be apprehended and taken
before a magistrate, who remanded and ultimately discharged him;
after the remand, the son told his father what he had done; the lat-
ter did not, however, prohibit his son from proceeding in the matter,
but said that as he (the son) had begun it, he would not interfere ;
and it was held to be no evidence for the jury of either previous

authority or subsequent ratification by the father.*

11 Vent. 47; BLN. P. 14. It is
a question of fact for the jury to
determine who was the prosecutor.
Lord ELLenporoven, C. J., in R. 2.
Cromwell, 4 M. & S. 207, observed,
that ‘‘in an action for a malicious
prosecution, if the prosecutor be kept
out of sight, it sometimes becomes a
point of very subtle evidence to
determine who is the prosecutor; but
id certum est quod cerium reddi potest ;
and it is a question to be ascertained
by inquiry and evidence.” See, also,
R. ». Smith, 1 Burr. 54; R. v. Kettle-
worth, 5 T. R. 33, in neither of which
was the prosecutor’s name on the in-
dictment. Sometimes it is the busi-
ness of the court to make the inquiry.
Id. and R.v. Incledon, 1 M. & 8.
268.

? Girlington ». Pitfield, 1 Vent. 47.

3 Sykes 0. Dunbar, Selw. N. P. 1081,

12th ed. This evidence is said to
have been admitted by Lord Kenyon,
on the ground that such was a question
of fact, the disclosure of which did
not involve a breach of the grand
juryman’s oath; but yet it seems that
either the witness must disclose the
whole that passed, or the defendant
would be precluded from ascertaining,
upon cross-examination, the grounds
from which the witness drew his gen-
eral inference that the defendant was
the prosecutor, A grand juror who
returned the bill “ignoramus” is com-
petent to prove the prosecution.
ye ». Cotton, 3 Watts (Penn.),

4 Freeman v. Arkell, 2B. & C. 494;
Spears v. Cross, 7 Port. (Ala.) 437.

6 Moon v. Towers, 8 C. B. (N. 8.)
611, per Eun, OC. J., Wriues, J., and
Byuzs, J.; dubitante Wruutams, J.
Evmwencr in Actions ror Marictous Prosroutions. 569

Sec. 599. Proof of charge and dismissal before the magistrate.

If the proceeding was by preferring a charge before a magistrate,
the magistrate or his clerk should be served with a subpena duces
tecum, to produce the proceedings. Where the declaration alleged
an information before a magistrate, and evidence was offered of an
admission by the defendant that he laid an information before a
magistrate, and it appeared from the evidence of the magistrate’s
clerk, that the practice was to take such information in writing, but
no evidence was given of the information itself, the plaintiff was
nonsuited.’ If the information was laid by the defendant, his tak-
ing the oath and handwriting should be proved, as also the issuing
the warrant to the constable, etc.; the warrant must also be pro-
duced and proved, and evidence should be given of the apprehension
and detention of the plaintiff under the warrant; and his ultimate
discharge must also be shown. Where evidence was given of the
loss of the warrant, parol evidence of its contents was admitted
without proof of the information.” An allegation that the defend-
ant wrongfully and without reasonable cause imposed the crime of
felony on the plaintiff cannot be supported but by evidence that the
defendant went before the magistrate, and made a charge of felony.’
Where the defendant went merely as a witness to support a charge
preferred by another, and the magistrate bound him over to appear
as a witness on the trial, it was held that the action was not main-
tainable against him.*

Sec. 600. If there be probable cause the prosecutor is protected.

If a party prosecute another on a criminal charge, it is a rule of
law, which seems to be founded upon the principles of policy and
convenience, that the prosecutor shall be protected in so doing, how-
ever malicious his private motives may have been, provided he had
probable cause for preferring the charge.’ This protection appears

whom it was made. Spears v. Cross,

1 Smith v. Walker, cor. Bayizy, J.,
7 Port. (Ala.) 487; Huidekoper v,

York summer assizes, 1821.

2 Newsam 2. Carr, 2: Starkie’s C. 70;
cor. Woop, B. Note, it did not ap-
pear that any information had been
taken, and yet it seems that it is to be
presumed in a case of felony that one
has been taken. And see Fernley v.
Worthington, 1 M.& G. 491. If the
» complaint was not reduced to writing
it may be proved by the magistrate to

- 72

Cotton, 8 Watts (Penn.), 56.

3 Blizard v. Kelly, 2 B. & C. 283.
See Clarke v, Postan, 6 C. & P. 423.

4 Eager v, Harmon and others, West.
Sitt. after Trin. 1831, per Lord Trn-
TERTON, C. J.

517. R. 520; 1 Salk. 14, 15, 21; 5
Mod. 394, 405; 1 Vent. 86, Carth. 415,
570 = Evipence in Actions ror Matictous Prosecutions.

to be not only one of convenience, but of justice, or even of neces-
sity, when it is considered how often it happens that the facts upon
which a prosecution is properly founded are confined to the knowl-
edge of the prosecutor alone; and if this proof were not to be
required on the part of the plaintiff, every prosecutor would in such
a case be left exposed to an action, against which he might have no
defense,’ if malice were to be inferred from the apparent want of
probable cause.

Sec. 601. Where the proceedings are by act of the magistrate.

Where a party robbed or injured merely states actual facts to a
magistrate, on which the latter acts according to his own discretion,
the action, it seems, is not maintainable. The complainant cannot, in
propriety, be said to be the prosecutor of the person against whom
the magistrate may think fit to issue his warrant; and whether there
be or be not probable cause for issuing the warrant, there was, at
all events, probable cause for making the statement, and no malice
can be inferred from a mere statement of facts according to thé
truth. Where the defendant went before a magistrate, and stated
the fact of his having lost a bill of exchange, and the magistrate’s
clerk stated the substance, but added that the plaintiff had felo-
niously stolen the bill; there being no evidence of malice on the
part of the defendant, it was held that the plaintiff had been prop-
erty nonsuited.’

And where the plaintiff was remanded by the magistrate, it was
held that the defendant could not be held liable for the imprison-
ment under the remand, as that was the judicial act of the magis-
trate.° But, as already stated,* where on a conflict of evidence
between the plaintiff and the defendant, in a suit in the county
court, the judge directed the plaintiff to be prosecuted for perjury,
and binds the defendant over to prosecute, the defendant may,
nevertheless, be liable to an action for malicious prosecution.

1See Lord Kenyon’s observations ° Cohen v. Morgan, 6D. & R. 8.
in Sykes v. Dunbar, 1 Camp. 202, in 3 Lock ». Ashton, 12 Q. B. 871;
note; and in Smith 2. Macdonald, 3 Shufflebottom ». Allday, 28 L. T. 292.
Esp. C. 6. These reasons do not, as 4 Supra, 305; Fitzjohn v. Mac-
has been seen, apply to a case where a_ kinder.

party makes an extra-judicial charge
against another.
571

Evipence in Aotions ror Mauicious Prosrcutions.

Sec. 602. Probable cause, how found.

It has already been seen that what will amount to reasonable and
probable cause may be either a question of Jaw, to be decided by
the court, or it may be a conclusion or inference of fact to be drawn
by the court from facts found by the jury.’ Or, rather, the quéstion
as to the existence or absence of reasonable and probable cause is
one of law for the judge to determine, but the facts are for the
jury; and where there are no facts nor any inferences from facts,
the question is purely one of law for the judge.” If the defendant
set up facts as showing probable cause, the judge must determine
whether the facts, if proved, or any of them, constitute such cause.
The jury have to decide only whether the fact or facts exist; and
this, however complicated or numerous they may be.’

Where the probable cause for charging the plaintiff with felony
consisted partly of matter of fact and partly of matter of law, it
was held that the judge was warranted in leaving the question to

the jury.’

'See Chap. XIV. ‘‘Occasion:
Probable Cause,’ 302. Where a
felony has been committed, though not
by the plaintiff, a private person may
justify not only a prosecution, but
even an actual arrest, if he acted on
fair and reasonable grounds of sus-
picion. But in an action of trespass
it would be necessary that the defend-
ant (not being a peace officer) should
plead specially the grounds on which
he acted. See Mure v. Kaye, 4 Taunt.
34; M’Cloughan v. Clayton, 2 Starkie’s
C. 445; Haw. b. 2, ch. 12, § 15. In
such cases, therefore, it may be a
question of law for the court whether
the circumstances were sufficient to
justify an arrest. No one who did
not himself believe, on facts within
his knowledge, that the party was
guilty, would be justified in making
an arrest. Haw. b. 2, ch. 12, § 15;
Sir Anthony Ashley’s case, 12 Co, 92.

2 Supra, p. 443.

3 Panton v. Williams, 2 Q. B. 169.
And see Lister ». Perryman, L.R., 4
H. L. 521; 39 L. J. Ex. 177. The
question of probable cause is for the
court, except where the facts are dis-
puted, when it becomes a mixed ques-
tion of law and fact. Bulkley v. Ketel-
tas, 4 Sandf. (N. Y.) 450; Weinberger

v. Shelly, 6 W. & S. (Penn.) 336;
Dodge »v. Brittain, Meigs (Tenn.), 84;
Graff v. Barrett, 29 Penn. St. 477;
Sims v. McLendon, 3 Strobh. (8. C.)
557; Beale v. Roberson, 7 Ired. (N. C.)
280; Stone v. Crocker, 24 Pick. (Mass.)
21; Cloon o. Gerry, 13 Gray (Mass.),
201; Stone v. Crocker, 24 Pick. (Mass.)
81; Kendrick ». Cypert, 10 Humph.
(Tenn.) 291; Hill». Palm, 38 Mo. 13;
Masten »o. Deyo, 2 Wend. (N. Y.)
424; Crabtree v. Horton, 4 Munf. (Va.)
59; Besson v. Southard, 10 N. Y. 236;
Taylor v. Godfrey, 36 Me. 525; Stone
v. Crocker, 24 Pick. (Mass.) 81; Turner
vo. Walker, 3 G. & J. (Md.) 377; Mas-
ten v. Deyo, 2 Wend. (N. Y.) 424;
Taylor v. Godfrey, 36 Me. 525; Nash
v. Orr, 8 Brev. (8. C.) 94.

4 M’Donald v. Rooke, 2 Bing. N. OC.
217; 2 Scott, 359. Itis for the court
to say, and it is its duty to say, what
facts constitute probable cause, but in
cases where the facts are disputed, it
is for the jury to say whether the facts
amounting to probable cause exist.
Turner v. Walker, 3 G. & J. (Md.)
877; Ney v.Otis, 8 Mass. 122; Munns
». Dupout, 8 Wash. (C. C.) 31. The
question of malice is also for the jury
alone. Closson v. Staples, 42 Vt. 209;
Grinnell ». Stewart, 32 Barb. (N. Y.)
572

Evience in Actions ror Mazictous Prosecutions.

Sec. 603. Evidence of the absence of reasonable and probable cause.

The prevailing rule of law in these cases is, that the jury are to
ascertain certain facts, and the judge is then to decide whether those
facts amount to reasonable and probable cause."

Qndly. It is incumbent on the plaintiff to establish affirmatively
the absence of reasonable and probable cause ;” slight evidence has
been held to be sufficient, the plaintiff being called upon to prove a
negative.’ Evidence of the bill having been thrown out by the
grand jury, has been held sufficient to warrant an inference of the

544; Ritchey v. Davis, 11 Iowa, 124;
Bulkley v. Keteltas, 4 Sandf. (N. Y.)
456; Plummer v. Gheen, 3 Hawks
(N. C.), 66; Dodge v. Brittain, Meigs
(Tenn.), 84; Nash v. Orr, 3 Brev. (8.

1Turner v. Ambler, 10 Q. B. 252;
Lister v. Perryman, L. R., 4 H. L. 521;
39 L. J. Ex. 177.

? Willans »v. Taylor, 6 Bing. 183;
Brooks v. Blain, 39 L. J.C. P. 1;
Walker o. 8. E, Railway Co., 39 L. J.
C. P. 346. To maintain an action for
malicious prosecution, the plaintiff
must prove—1. That the defendant
instigated the prosecution against the
plaintiff. 2, That such prosecution
was without probable cause. 3. That
it was accompanied with malice, and
terminated favorably to the party pros-
ecuted. Both malice and a want of
probable cause for the former suit
must be alleged and proved. If there
was probable cause, the action cannot
be maintained, even though the pros-
ecution complained of was malicious.
Want of probable cause cannot be in-
ferred from any degree of malice which
may be shown. Miller v. Milligan, 48

Barb. (N. Y.) 80; Malone». Murphy, 2 |

Kans. 250; Lacy v. Mitchell, 23 Ind. 67;
Blassv. Gregor, 15 La. Ann. 421; Stan-
cliff v. Palmeter, 18 Ind. 321; Candler
». Petit, 2 Hall (N. Y.), 8315; Murray o.
Long, 1 Wend. (N. Y.) 140; Bell 2.
Ursury, 4 Litt. (Ky.) 334; Campbell
ov. Threlkeld, 2 Dana (Ky. ), 425; Turner
o. Walker, 8 Gill & J. (Md.) 377; Pang-
burn 2. Bull, 1 Wend. (N. Y.) 345;
M’Cormick ». Sisson, 7 Cow. (N. Y.)
715; Marshall o, Maddock, Litt. (Ky.)
Sel. Cas, 106; O’Driscoll v. M’Burney,
2 Nott & M. (S. C.) 54; Morris o. Cor-
son, 7 Cow. (N. Y.) 281; Thomas 2.

C.) 94; Weinberger v. Shelly, 6 W.
& §. (Penn.) 336; Pomeroy. »v. Golly,
Ga. Dec. 26; Fisher v. Forrester, 33
Penn. St. 501. :

De Graffenried, 2 Nott & M. (S. C.)
143; Garrard v, Willett, 4 J. J. Marsh.
(Ky.) 628; Smith » Shackleford, 1
Nott & M. (8S. C.) 86: Stone v. Stevens,
12 Conn. 219; Young ». Gregorie, 3
Call (Va.), 446; Blunt v. Little, 3 Mason,
102; Marshall ». Bussard, Gilm. (Va.)
9; Munns». Dupont, 3 Wash. (C. C.)
31; Lyon v. Fox, 2 Browne (Penn.),
67; Wiggin ». Coffin, 3 Story, 1;
Cook ». Walker, 30 Ga. 519; Jacks
». Stimpson, 13 Ill. 701; Hurd ».
Shaw, 20 id. 354; Wade »v. Wal-
den, 23 id. 425; Israel v. Brooks,
id. 575; Cummings v. Parks, 2 Ind.
148; Ammerman yz. Crosby, 26 id. 451;
Center v. Spring, 2 Iowa, 393; Ritchey
v. Davis, 11 id. 124; Malone », Mur-
phy, 2 Kans. 250; Kearney ». Holmes,
6 La, Ann. 373; Murphy ». Redler,
16 id. 1; Robertson v. Spring, id. 252;
Dickinson v. Maynard, 20 id. 66; Mc-
Lelland ». Cumberland Bank, 24 Me.
566; Stone v. Crocker, 24 Pick. (Mass.)
83; Greenwade 2, Mills, 31 Miss. 464;
Riney v. Vallandingham, 9 Mo. 816;
Frissell ». Relfe, id. 859; Moore o.
Sauborin, 42 id. 490; Foshay ». Fer-
guson, 2 Den. (N. Y.) 617; Besson 2.
Southard, 10 N. Y. (6 Seld.) 286; Hall
v. Suydam, 6 Barb. (N. Y.) 83; Bulke-
ley v, Smith, 2 Duer (N. Y.), 261;
Campbell 2. O’Bryan, 9 Rich. (8. C.)
204; McNeese v. Herring, 8 Tex. 151;
Hitson v. Forest, 12 Tex. 320; Kelton
2, Bevins, Cooke (Tenn.), 90.
®Incledon v. Berry, 1 Camp. 203;
Taylor v, Willans, 2 B. & Adol. 857,
Evmence in Actions ror Manicious Prosscurions. 5738

absence of probable cause.! Evidence of the most express malice
will not dispense with proof of the absence of probable cause.’
Where, upon an indictment for a malicious prosecution for per-
jury, it appeared that part of the affidavit on which perjury had
been assigned had been falsely sworn, but that there was no prob-
able cause for sonie assignments of perjury, on some of the trans-
actions contained in the affidavit, it was held that the action was
maintainable, for there being no probable cause for some of the
charges in the indictment, it was preferred without probable cause.’

Sec. 604. Malice.

The fact of malice, which is a question for the jury,* is usually
inferred from the want of any probable cause for the prosecution.°
No evidence of malice can be more cogent than the proof that the
defendant knew that the plaintiff was innocent. A person cannot
have reasonable and probable cause for indicting another unless he
believes such person to be guilty; and where evidence is given to
show that the defendant did not believe in such guilt, it is proper to
leave the question of belief as a fact to the jury. If they find there
was an absence of such belief, there can be no reasonable or probable

1 Nicholson v. Coghill, 4 B. & C. 28,
per Hoxtroyp, J. But see Byne 2.
Moore, 1 Marshall, 12. Contra, Ful-
mer ». Harmon, 3 Strobh. (8. C.)
576; Gorton v. De Angelis, ante;
Frederick ». Halberstadt, ante ; Rob-
erts ». Bayles, 1 Sandf. (N. Y.) 47.
The plaintiff must show by competent
evidence that the suit or prosecution
isended. Steel ». Williams, 18 Ind.
161; but an acquittal need not be
shown, but a jinal terminatiop of the
action or prosecution, either by dis-
continuance, nonsuit or judgment.
Stancliff ». Palmeter, 18 Ind. 321.
An abandonment of the charge and
discontinuance of the prosecution is
equivalent to a discharge of the party
from the accusation. Fay v. O'Neill,
86 N. Y. 11; or when an indictment
is quashed and the defendant is dis-
charged, even though the defendant
is not finally acquitted. Hays ». Bliz-
zard, 30 Ind. 457; Johnston v. Martin,
8 Murph. (N. C.) 248; Bostick ».
Rutherford, 4 Hawks (N.C.), 88.

* Turner v. Turner, 1 Gow. 20;, Wood

». Weir, 5 B. Monr. (Ky.) 544; Horna.
Boon, 3 Strobh. (S. C.) 307; Murray 0.
Long, 1 Wend. (N. Y.) 140; Hall .
Hawkins, 5 Humph. (Tenn.) 357;
Casperson v. Sproul, 39 Mo. 39.

3 Per Gress, C.J., Reed », Taylor,
4 Taunt. 616.

*See Johnstone v. Sutton, 1 T. R.:
543; Mitchell o. Jenkins, 5 B. & Adol.
588; Brooks v. Warwick, 2 Starkie’s
C. 842. See, also, Isaacs ». Brand, 2
Starkie’s C. 167; Fletcher ». Webb,
11 Price, 381; Spencer v. Jacob, 1 M.
& M. 180; and supra, 304.

5 Incledon v. Berry, 1 Camp. 203;
Savil v. Roberts, 1 Salk. 14; 1 Lord
Ray. 374; Mitchell ». Jenkins, 5 B.
& Adol. 588; Huntley v. Simson, 2
H. & N. 600. Blunt». Little, 3 Mas.
(U. 8.) 122; Garrison v. Pearce, 3 E.
D. 8. (N. Y.) 255; Grinnell vo. Stew-
art, 82 Barb. (N. Y.) 544; Merriam 0.
Mitchell, 13 Me. 439; York». Chilton,
4 La. Ann. 377; Newell v. Downs, 8
Blackf. (Ind.) 523; Hall 0. Hawkins,
5 Humph. (Tenn.) 357, ,
574 Evinence in Actions ror Manicious PRrosxcurions.

cause; and the jury may also be directed that if they find that the
defendant acted from an improper motive they may infer malice."
The absence of belief must be proved by the plaintiff; and if not
proved, the defect is not supplied (for the purpose of showing want
of probable cause) by evidence that the defendant made use of the
charge as a means of obtaining an unfair advantage over the plain-
tiff.’

Sec. 605. Disbelief of party making the charge.

The disbelief of a party making a charge before a magistrate is
some evidence of want of probable cause, notwithstanding other
evidence has shown that there was prima facie probable cause for
making the charge. And so where the defendant, in charging the
plaintiff with felony, accompanied the charge with the demand of a
debt or sum of money, the judge directed the jury that if from that
circumstance the jury inferred that the defendant believed the plain-
tiff had not committed a felony, that belief would be some evidence
on which they would consider whether or not there was reasonable
and probable cause for making the charge, or in other words, whether
a reasonable and probable cause operated upon the mind of the
defendant: and such was held to be a proper direction to the jury.*

Where the plaintiff, who was secretary to a public company, pre-
pared and published a report and balance sheet containing errors

* Haddrick ». Heslop and another,
12 Q. B. 267; Turner v». Ambler, 10
Q. B. 252.

* Turner v, Ambler, 10 Q. B. 252.

3 Broad »v, Ham, 5 Bing. N. C. 722.
The fact that the defendant might
have ascertained upon reasonable in-
quiry that the crime had not been
committed, is not evidence of want of
probable cause, nor is the fact that he
did not believe that the defendant
was guilty. The question is, whether
hehad reason to believe him guilty. Burns
v. Erben, 1 Robt. (N. Y.) 555. The
liability does not depend so much on
what the defendant in fact believed as
upon what he had reasonable ground
for believing. There must be want of
probable cause. That is, the prosecu-
tion must have been instituted under
circumstances that were wholly un-
warranted by the facts or circum-
stances, and the burden of showing
this is upon the plaintiff. Hall o.

Hawkins, 5 Humph. (Penn.) 3857;
Talbert v. Stone, 10 La. Ann. 537;
Wood v. Weir, 5 B. Monr. (Ky.) 544;
Tefft ». Windsor, 17 Mich. 486; and
cannot be inferred from the most ex-
press malice; Murray ». Long, 1 Wend.
(N. Y.) 140; Pangburn 2. Bull, id.
345; Casperson v. Sproule, 39 Mo. 39;
Callahan v. Caffarata, id. 186; Wood
vo. Weir, 5 B. Monr. (Ky.) 544; Hall o.
Hawkins, 5 Humph. (Tenn.) 357; Bell
». Pearcy, 5 Ired. (N. C.) L. 88;
Horn ». Boon, 3 Strobh. (S. C.) 307;
Beach v. Wheeler, 24 Penn. St. 212;
but if a prosecution is shown to have
been instituted wantonly, and for no
justifiable end, it is malicious. Kerr
». Workman, Add. (Penn.) 270. Mal-
ice may be inferred from want of
probable cause. Stone v. Stevens, 12
Conn. 219; Merriam », Mitchell, 18
Me. 439; Grinnell ». Stewart, 832 Barb.
(N. Y.) 544.
Eviwence in Actions ror Manictous Prosrcutions. 575

and wrong statements, the defendant laid an information under 24
& 25 Vict., ch. 96, § 84, and charged him before a magistrate with
making and circulating the same, knowing it to be false in a material
particular, with intent to defraud: but the charge was dismissed.
In an action by the plaintiff against the defendant for malicious
prosecution, it was held, that the mere fact that the report and bal-
ance sheet contained errors and false statements did not afford “ rea-
sonable and probable cause” for taking criminal proceedings against
the plaintiff, in the absence of proof that he made and published
the report and balance sheet as a willful falsehood, and with intent
to defraud."

Sec. 606. Proceedings in bankruptcy without probable cause.

Where the declaration alleged that the defendant falsely and ma-
liciously, and without any reasonable or probable cause, filed a peti-
tion for adjudication of bankruptcy against the plaintiff, and falsely
and maliciously, and without reasonable or probable cause, caused
and procured the plaintiff to be declared a bankrupt, it was held
that the allegations in the declaration were established by proof that
the defendant petitioned for the adjudication, and, by depositions
false in fact and maliciously made, induced the commissioner to ad-
judicate the bankruptcy; although it appeared that, even if the
depositions had been true, the adjudication could not have been sup-
ported in law.’

Sec. 607. Positive evidence necessary to show that prosecution was ground-
less.

It is invariably necessary in an action of this nature, to give some
positive evidence, arising out of the circumstances of the prosecu-
tion, to show that it was groundless; it is insufficient to prove a
mere acquittal, or even to prove any neglect or omission on the part
of the defendant to make good his charge, for the prosecution may
have been commenced and abandoned from the purest and most
laudable motives. Thus it is not enough to show, that on an in-

1 Ayres. Hlborough, 22 L. T.(N.S.) Sykes 0. Dunbar, cited 9 East, 363, in
106, per BLacKBURN, J. the note, where Lord KENYON ruled,
2 Farley v. Danks, 4 E. & B. 498. that it was not sufficient for the plain-
But see Johnson ». Emerson and an-_ tiff to show his acquittal, without go-
other, 25 L. T. (N. 8.) 337. ing further, and giving evidence of
3 Purcell 2. McNamara, 9 East, 361; malice in the defendant.
576 Evirncre is Actions ror Maticious Prosrcurions.

dictment of the plaintiff by the defendant for perjury, the former
was acquitted upon the trial, on failure of the prosecutor’s appear-
ance when called;! even although the facts lay within the defend-
ant’s knowledge, who, had there been the least foundation for
the prosecution, might have proved it.’ Or to prove that the bill
was thrown out by the grand jury,’ or that the defendant, after
charging the plaintiff on oath with an assault, omitted to prefer an
indictment.*

Although malice be proved, such will not be evidence of the want
‘of probable cause, if it be shown that the defendant knew of certain
circumstances which led to a legal and reasonable suspicion against
the plaintiff... But if it can be proved that the defendant did not
believe he had a legal right to prosecute, such will be evidence of the
absence of reasonable or probable cause.”

Sec. 608. Effect of-abandoning the prosecution.

So also, if he afterward fail to appear and prosecute or give evi-
dence, unless he show that at the time of the prosecution he knew
of the facts upon which he afterward relied as justifying the prose-
cution ;’ and it will be a question for the jury, under all the circum-
stances, as to the motive which induced the defendant to abstain
from appearing to prosecute or give evidence. The motives of
parties can only be ascertained by inference drawn from facts;
and the jury should, in such cases, be directed by the judge to find

‘Id

; the charge, but only such circum-
2 Parrott v. Fishwick, Lond. Sitt.

stances as would excite a reasonable

after Trin. T. 1772; 9 East, 362.

3 Byne v. Moore, 1 Marshall, 12.
But in Nicholson v.Coghill, Hotroyp,
J., said, that evidence of the bill hav-
ing been thrown out by the grand
jury had been held sufficient to war-
rant an inference of the absence of
probable cause, 4 B. & CO. 23. |

4 Wallis v. Alpine, 1 Camp. 203, in
the note.

An acquittal of the charge is not
even prima facie evidence of a want
of probable cause. It must be proved
affirmatively from the circumstances,
Bell v. Pearcey, 11 Ired. (N. C.) 233;
McBean ». Ritchie, 18 Ill. 114; Scott
v.. Simpson, 1 Sandf. (N. Y.) 601. The
defendant, in order to establish prob-
able cause, is not required to show
that the plaintiff was really guilty of

ground for belief that he was guilty,
in the mind of a reasonable man acting
upon the same facts and circumstances,
Ray 0. Law, Peters’ C. C. (U. 8.) 207;
Sheehee v. Resler, 1 Cr. C. C. (U. 8.)
42; Campbell o. Threlkeld, 2 Dana
(Ky.), 425; Zantzinger ». Weightman,
2 Cr. C.C. (U. S.) 478; Wilmarth v.
Mountford, 4 Wash. (U. S.)'79; Shafer
v. Loucks,58 Barb.(N. Y.) 426; Mowry
v. Whipple, 8 R. I. 860; Shaul». Brown,
28 Iowa, 37; Carl». Ayers, 53 N. Y.
14; Harkrader v. Moore, 44 Cal. 144;
Bourne v, Stout, 62 11.261; Trogden v.
Deckard, 45 Ind. 572. ‘

5 Johnstone v. Sutton, 1 T. R. 545.

6 Turner v, Ambler, 10 Q. B. 252.

" Delegal v. Highley, 3 Bing. N. C.
950; 5 Scott, 154.
Evipencre in Actions ror Maticious Proszoutions. 577

whether there was or was not probable cause, and to find for or
against the defendant according to their opinion of the motive.’
But the mere fact of the defendant dropping the prosecution, and
failing to appear when the indictment comes on to be tried, is not
of itself sufficient evidence of want of probable cause ;’ nor is the
neglecting to prefer an indictment after the charge has been laid.*
But where the prosecutor has abandoned the prosecution without
giving any evidence, and it is proved that the defendant was actu-
ated by malicious motives in preferring the bill, although some evi-
dence must still be given of the want of probable cause, slight
evidence will be sufficient.‘ In an action against a magistrate for a
malicious conviction, the question is not whether there was probable
cause in fact for convicting, but whether he had any probable cause
for convicting; and for this purpose, what passed before him upon
the hearing is not only proper, but essential evidence with a view to

the question of malice.’

1 Taylor v. Willans, 2 B. & Adol.
845. (In court of error.)

? Purcell v. M’Namara, 1 Camp.
199.

3 Same (in note), 204. And see Wil-
lans v. Taylor, 6 Bing. 188.

4 Per Le Buanc,J.,Incledon 2. Berry,
1 Camp. 203, in the note.

> Burley v. Bethune, 5 Taunt. 580.

The gravamen of the action is, that

the defendant, without probable cause,’

instituted the prosecution,and the bur-
den of establishing this fact is upon
the plaintiff, and it must also be shown
that the prosecution was malicious.
But, if want of probable cause is
shown, malice will be inferred. The
defendant when a prima facie case is
made out by the plaintiff is bound to
show that he had reasonable grounds
for making the charge or complaint,
and in order to do this not only may,
but must show the circumstances
which furnished the ground for his
action, and also that the prosecutor
had been informed of those facts and
circumstances, and that he believed
the facts amounted to the offense
charged, and the defendant guilty
thereof. Itis for the court, and not
for the jury, to determine whether the
facts amount to a probable cause.
When they are not controverted, the
court must instruct the jury whether

73

they amount to probable cause; and if
they are, it must instruct that if they
find the facts in a designated way, then
such facts do, or do not, amount to
probable cause. Malice must be
shown, in order to support the action,
and it is not necessarily to be inferred
from want of probable cause. There
may be want of probable cause and no
malice, but the jury may find the fact
of malice from the circumstances of .
the want of probable cause. Harkrader
v. Moore, 44 Cal. 144; Mowry ».
Whipple, 8 R. I. 360; Burnaps wv.
Mowry, Taney (U.S.), 244; Preston
v. Cooper, 1 Dill. (U. 8.) 589; Fullen-
wider ». McWilliams, 7 Bush (Ky.),
389; Shafer v. Loucks, 58 Barb. (N.
Y.) 426; Dietz v. Langfitt, 63 Penn.
St. 284; Spain v. Howe, 25 Wis.625;
Doll v. Schoneberg, 2 Dis. (Ohio) 54;
Olmstead ». Partridge, 16 Gray, 381.
A, while attending a fair, left his
buggy near the fair grounds, and upon
searching for it could not find it, and
was told by persons on the ground,
that B had hitched his horse toit and
drove off, and tnat B was a hard case.
A afterward made numerous inquiries
for the buggy, but could hear nothing
from it, and was then advised by
counsel that the act of B was larceny,
and he should procure a warrant for
B's arrest. The warrant was obtained
578

Evience in Actions ror Maticious Proskovrions.

Sec. 609. Absence of probable cause a strong presumption of malice.

The proof of malice in this action (as has already been observed)
usually results from the want of probable cause, which when once

and placed in the hand of a constable.
A was afterward told that B denied
having taken the buggy, and claimed
that it was taken by a servant of his
brother. A afterward found his buggy
on the fair ground. In an action for
malicious prosecution against A, it
was held that the question of probable
cause is for the jury, but that malice
is inferable from a want of probable
cause, and can only be rebutted by evi-
dence that tends to show that there
was probable cause. Lawyer v. Loomis,
37. &C. (N. Y.) 3938. Plaintiff and
defendants had unsettled mutual
claims against each other. One of the
defendants went to Rhode Island,
where plaintiff was to settle the same.
While there, plaintiff brought action
on his claim, and caused the arrest of
defendant therein. Defendants then
brought action upon their claim and
procured the arrest of plaintiff. The
defendants’ claim could not be set off
in the action by plaintiff. Arrest was
then a common though not the only
mode of commencing an action in
Rhode Island, and the arrest was pro-
cured by the advice of counsel, and
defendants disclaimed malice in pro-
curing it. The two actions were tried
together and a balance found due
plaintiff after deducting defendants’
claim. Held, that defendants were
not liable for malicious prosecution.
The bona jide acts of a party on advice
given by counsel, after a full and fair
statement of the facts, are evidence of
probable cause, however erroneous the
advice may be. Richardson . Virtue,
4T.&C.(N. Y.) 441. At the trial
evidence was given showing that one
8. daubed defendant’s fence with
paint, and told defendant's wife that
it had been done by plaintiff and her
sister. He afterward told defendant
that it was not done by them but by
himself. Subsequently defendant pro-
cured a warrant against plaintiff and
her sister for malicious mischief, and
they were tried before a police justice
and the complaint dismissed. It also
appeared that defendant had agreed
to settle the matter with 8. Held,

that it was a question for the jury
whether defendant had probable cause
for procuring the warrant. Foote 2.
Milbier, 1 T. & C. (N. Y.) 456. In
Heyne v. Blair, 3 T. & C. 264, the de-
fendant having discounted for plaintiff
two notes of.$300 each, both indorsed
by A, discovered, on subsequent ex-
amination, that the indorsements did
not appear to be alike. He thereupon
took the notes to the bank where A
did business and was told by the cash-
ier that he doubted the genuineness
of one of the notes, the teller also re-
marking that if such a signature was
ona check, he would hesitate about
paying it. The cashier was asked by
the defendant to inquire of A how
many notes he had indorsed for plain-
tiff, which he accordingly did and was
told by A that he was on two notes
only, one of $300 and one of $150. This
information was communicated to de-
fendant, who then had plaintiff ar-
rested. The indorsements proved to
begenuine. Inan action for malicious
prosecution, it was held that defend-
ant had probable cause for causing the
arrest. Where the facts are undis-
puted, the question whether there was
‘probable cause for the prosecution is
one of law for the court. While a
person may, acting in good faith, and
upon reasonable grounds, make a
criminal accusation against another,
founded upon appearances, yet those
appearances must be such that a dis-
creet and prudent person would be
led to believe by them that a crime had
been committed. Mere conjecture is
not enough. If the accuser puts a
false and unreasonable construction on
the conduct of the accused, he cannot
justify the arrest by claiming that he
acted on appearances. So held, where
plaintiff approached defendant, whose
child was ill, on a steamboat, and
touching him on the shoulder, said he
wished to speak with him, and being
roughly answered, turned away, and
then turned back and stated to de-
fendant that he intended to speak
with him about his child, whereupon
defendant caused his arrest on acharge
Evipence in Actions ror Manicious Prosecutions. 579

established affords the strongest presumption of malice! Evidence
as to the conduct of the defendant in the course of the transaction,
his declarations on the subject, and any forwardness and activity in
exposing the plaintiff by a publication of the proceedings, is prop-
erly adduced to prove malice." It seems also, that the plaintiff may
give in evidence the proof adduced by the defendant on the trial of
the charge;* but not the observations made by the judge on the
trial of the indictment.* So, he may give in evidence publications
by the defendant on the subject of the charge; as where the plain-
tiff gave in evidence an advertisement published by the defendant
pending the prosecution of an indictment for perjury, though an
information had been granted; but the chief justice informed the
jury that they were not to consider it in damages, but only as a
circumstance of malice.° And where the defendant, a bank in-
spector, had procured the plaintiff, a tradesman, to be taken into
custody on a charge of having in his possession a forged bank-note,
without legal excuse; because he had refused, after paying the
amount to the person to whom he had paid it away, to deliver it up
to the inspector, Lord Ex.enzorover held that the pressing a com-
mitment, under such circumstances, was such crassa ignorantia that
it amounted to malice.*

Where the defendant suspected the plaintiff of receiving a sum of

If he

of an attempt to steal his diamond pin.
1873,Carl ». Ayers, 58 N. Y. 14; Con-
nally v. McDermott,3 Lans. (N. Y.) 163.
The plaintiff must aver and prove a
want of probable cause; consequently,
facts showing probable cause may be
proven in evidence under the general
denial, and, the general denial being
pleaded, it is not error to sustain a
demurrer to a special answer alleging
the existence of probable cause for the
prosecution. Trogden v. Deckard, 45
Ind. 572. If it appears that the de-
fendant had cause to believe that the
plaintiff was guilty, the defendant
will not be liable. It is not necessary
that all the facts shall be true upon

'Savil »v. Roberts, 1 Salk. 14;
Mitchell v. Jenkins, 5 B. & Adol. 588;
Huntley v. Simson, 2 H. & N. 600;
Incledon ». Berry, 1 Camp. 203; Hen-
derson v. Md. Ry. Co., 24 L. T. (N. 8.)
881.

which the prosecutor acts.
honestly believes them to be true, and
they are of such a character as would
induce a reasonable and prudent man
to believe them to be true, then there
is probable cause. Bourne v. Stout,
62 Il. 261. The fact that the charge
was false does not prove want of prob-
able cause, and the burden is upon
the plaintiff to show that there was
not. Scallen v. Longfellow, 48 Ind.
23; Leviv. Brannan, 39 Cal. 485. The
question is, whether there were facts
and circumstances that warranted the
charge. Lamb v. Gallard, 44 Cal. 609;
Burgett v. Burgett, 43 Ind. 78.

2 Str. 691.

2B. N. P. 13, 14.

4 Barker v. Angell, 2 Mood & R. 371.

5 Chambers v. Robinson, Str. 691.

6 Brooks v. Warwick, 2 Starkie’s C.
342.
580 Eviwrncre 1x Actions ror Mauicious Prosscurions.

money which had been taken from him by a woman at a fair; and
on the plaintiff being taken into custody and brought before a
magistrate the defendant did not appear to prosecute; the plaintiff's
‘solicitor always expressed himself ready to produce the plaintiff to
meet any charge by the defendant, yet the defendant afterward
applied for a warrant, and went with a police officer and gave
the plaintiff into custody —such was held ample evidence of
malice.’

Sec. 610. Distinction between institution of a prosecution and its continuance
by an agent.

In cases of malicious prosecution, a material distinction as to
liability arises between the institution of the prosecution and its
continuance afterward by an agent or other interested person, with-
out authority. The absence of reasonable and probable cause which
might be evidence of malice in the one case will not be so in the
other. So, where the party put in possession under a bill of sale
had caused a summons to be issued against the assignor for feloni-
ously stealing some of the chattels assigned, and the assignees
attended the hearing, and allowed the case to be opened on their
behalf as prosecutors; it was held that the absence of reasonable
and probable cause would not be evidence of malice against them.’

Sec. 611. Proofs on part of the defendant.

Under the previous practice, the plea of “Wot Guilty” put in
issue the fact of the prosecution by the defendant, the absence of
reasonable and probable cause for the prosecution, and the malice of
the defendant in instigating the prosecution; the burden of proof
as to these was therefore thrown upon the plaintiff by that plea.*

Sec. 612. Mere suspicion not sufficient defense.

And under thé same plea, the defendant was at liberty to give in
evidence any facts tending to show that he had reasonable and
probable cause for prosecuting, and that he acted bona fide upon that
ground of suspicion. But he cannot rely on circumstances of mere

1 Shufflebottom v, Allday, 28 L. T. 8 Cotton v. Browne, 3A. & EB. 312;
2. Hounsfield ». Drury, 11 A. & E. 98;
* Weston v, Beeman and another, 27 Drummond v, Pigou, 2 Bing. N. C.
L. J. Ex. 57. And see Moon v. Tow- 114.

ers, 8 C. B. (N. 8.) 611, ante, p. 468,

29
EvipenoE in Actions ror Maticious Prosgcurions. 581

suspicion as evidence of reasonable or probable cause, for a defense
to the action. A charge of felony is not made maliciously if done
in the honest belief of the existence of facts, which would constitute
cause of suspicion of felony.” If a man act bona jfide on honest
belief of the truth of statements made to him by others whom he
believes to be credible persons, he is justified in so acting upon such
statements, if he believes there is reasonable and probable cause for
his-so doing. The question is not whether they were right or wrong ;
it is what they told the defendant.’ Buta party who causes another
to be taken into custody for felony, cannot shelter himself under
the forms or process of the law which he puts in motion by sworn
statements of his own, which are not correct.‘ So, also, it is no
answer to the action that the defendant acted upon the opinion of
counsel, if the statement of facts upon which the opinion was
founded ‘was incorrect, or the opinion itself unwarranted.*

Sec. 613. Evidence of the existence of reasonable and probable cause.
Previously to the operation of the judicature acts, and the orders
and rules made in pursuance thereof; in actions for malicious prose-
cutions, slander of title, and other special actions on the case, where
the plaintiff is bound to prove express malice, and the want of

1 Busst v. Gibbons, 30 L. J. Ex. 75.
Mere suspicion, nore mere belief that
the plaintiff has committed a crime,
will not warrant his prosecution. The
defendant must show that his suspicion
or belief was predicated upon facts
and circumstances that warrant them,
and warranted the action he took in
the matter. He must show that his
acts were reasonable in view of the
facts. Wheeler v. Nesbitt, 24 How.
(U. 8.) 544; Ray v. Law, Peters (U.S.
C. C.), 207; Goodrich ». Warner, 21
Conn. 482; Gardner v, Randolph, 18
Ala. 685. Evidence of the suspicious
conduct of the plaintiff the day before
his arrest has been held admissible
even though it was not shown that the de-
Sendant knew of it, at the time of the
arrest. McRae v. O'Neal, 2 Dev. (N.
C.) 167; but the doctrine of this case,
so far as expressed in italics, is hardly
consistent, and cannot be regarded as
authoritative. The defendant must
show good grounds for his institution of
the prosecution, and this cannot be done
by showing facts he did not know of

at the time when he caused the arrest.
Bostick v. Rutherford, 4 Hawks (N.
C.), 83; Johnston v. Martin, 3 Murph.
WN. C.) 248. It is not necessary for
the defendant to show even that an
offense had been committed, but he
must show that he had good grounds for
believing that there had been, and that
the plaintiff committed it, and the facts
on which he acted must be shown, and
in order to excuse him as amounting
to probable cause, must be such as
would have induced similar action on
the part of areasonable man under the
same circumstances, Spencer v. An-
ness, 32 N. J. 100; Scanlan v. Cawly,
2 Hilt. (N. Y.) 489; Hall ». Hawkins,
5 Humph. (Tenn.) 357; Center ».
Spring, 2 Iowa, 393; Faris ». Starke,
3B. Monr. (Ky.) 4.

2 Stewart vo. Beaumont,.4 F. & F.
1034, per ERxE, C. J.

3 Chatfield and Wife 0. Comerford, 4
F. & F. 1008, per Cocxzurn, C. J.

4 Stewart v. Beaumont, 4 F. & F.
1034, per ERE, C. J.

5 Hewlett v. Crutchley, 5 Taunt. 277.
582 Evimence in Actions ror Maricious PRosEcutions.

probable cause, the defendant was at liberty to prove that the fact
was true, or to give any other evidence to show probable cause
under the general issue, without a special justification. For this was
merely to repel the proof which was necessary to sustain the plain-
tiffs case. Thus in an action for slander of title, where the slander
consisted in alleging that the plaintiff had encroached on his land-
lord’s land, it was held that the defendant was at liberty to prove
that encroachments had in fact been made.’ In an action for mali-
ciously outlawing the plaintiff, the plea “ot Guclty” put in issue
the existence of reasonable and probable cause, but not the reversal
of the outlawry.’ So, in an action for maliciously, and without
reasonable cause, refusing to accept a tender of debt and costs, for
which the plaintiff was in execution at the- defendant’s suit, the
defendant was at liberty to give evidence of probable cause, under
the plea of “ Wot Guilty”* But if, in addition to such plea, he
‘pleaded specially that he had probable cause, the court, or a judge at
chambers, would order such plea to be struck out.*

In an action by an attorney for maliciously, and without probable
cause indicting him for sending a threatening letter, it appeared that
his clients, having inquired of the defendants as to the truth of a
representation made by a person who had offered to buy goods of
them, the defendants replied that they would not be responsible for
the price of the goods, but believed the person had the employment
he represented. The goods were then supplied to him. His repre-
sentation turned out to be false, and the plaintiff, by direction of his
clients, wrote a letter to the defendants, demanding payment of them
of the price of the goods obtained from his clients through the
defendant’s representation, and stating that the circumstances made
it incumbent on his clients to bring the matter under the notice of
the public, if the defendants did not immediately discharge the
amount, and that he had instructions to adopt proceedings if the
matter were not arranged in the course of the morrow; and that as
those measures would be of serious consequence to the defendants,
he hoped they would prevent them by attention to his letter. The
defendants were then summoned before a magistrate to answer a
charge of obtaining goods under false pretenses.

1 Watson v, Reynolds, 1M. & M. 1. ® Hounsfield v. Drury, 11 A. & E. 98.

* Drummond 2. Pijou, 2 Bing. N.C. 4 Cotton » Browne, 3 A. & E. 312;
114. 4N. &M. 881.
Evmenocr or Actions ror Maticious Prosrcutions. 583

Sec. 614. Evidence of reasonable and probable cause.

The plaintiff served the summons and attended with his clients,
and the complaint was dismissed. The defendants afterward
indicted the plaintiff for sending a threatening letter, and he was
acquitted. On the trial of the action, for maliciously indicting the
plaintiff, the jndge, without leaving any question to the jury, decided
that there was reasonable and probable cause for preferring the
indictment; and it was held that the decision was correct ; and that
the evidence did not raise a question of fact for the jury, whether
the defendants bona jide believed that they had a reasonable cause
for indicting, but a pure question of law for the judge whether the

defendants had such reasonable cause.!

1 Blachford v. Dod and another, 2
B. & Adol. 179. Probable cause is
only such a state of facts and circum-
stances, as warrant a careful and pru-
dent man in believing that the defend-
ant was guilty; and the question to be
determined is not whether he in point
of fact believes the plaintiff guilty,
but whether from the facts and cir-
cumstances was warranted in believing
him to be guilty, and in cases where
the guilt or innocence of an act de-
pends upon the motive, the conduct
and declarations of the party, as to
other similar transactions about the
same time, are always admissible to
prove actual guilt; and fortiori to
show probable cause for a prosecution.
Though malice is a prima facie infer-
ence from the proof of the want of
probable cause; still this inference may
always be rebutted by evidence show-
ing that the prosecutor acted in good
faith, and without malice, though not
with what the law would term prob-
able cause. Scanlan v. Cowley, 2
Hilt. (N. Y. C. P.) 489; Center ».
Spring, 2 Clarke (Iowa), 393; Floyd ».
Hamilton, 33 Ala. 235; O’Grady ».
Julian, 34 id. 88; Raver ». Webster,
3 Clarke (Iowa), 502. When the facts
are not controverted, the question
whether they constitute probable cause
for the prosecution is for the court.
But the question of malice is solely
for the jury. Cloon v. Gerry, 13 Gray
(Mass.), 201; Besson ». Southard, 10
N. Y. 236; Waldheim ». Sichel, 1
Hilt. (N. Y. C. P.) 45. A conviction
by a justice of the peace, in a case

Where a trustworthy ser-

within his jurisdiction, is sufficient
evidence of probable cause to defeat
an action for malicious prosecution.
Facts and circumstances which led to
the inference that a party instituting a
suit was actuated by an honest and
reasonable conviction of its justice,
are sufficient evidence of probable
cause. Where, in an action for mali-
cious prosecution on an issue of proba-
ble cause, the questions of law and
fact are so mixed as not to be easily
susceptible of separate decision, the.
question is for the jury, under instruc-
tions. from the courts. Besson 2.
Southard, supra. When the testi-
mony is conflicting, the question of
probable cause is a mixed question of
law and fact. Waldheim ». Sichel,
ante; Besson v. Southard, ante ; Stone
v. Dickinson, 7 Allen (Mass.), 26.
Malice and want of probable cause
must both concur. Murphy v. Redler,
16 La,Ann.1. The jury may infer
malice from want of probable cause,
but they are not bound to. Malone v,
Murphy, 2 Kans, 250; it is merely evi-
dence of malice, and does not amount
to malice itself. It is for the jury to
say whether in view of the facts there
was malice in fact. Schofield v. Fer-
rers, 47 Penn. St. 194. What consti-
tutes probable cause does not depend
upon the actual guilt or innocence of
the accused, but upon the reasonable
belief of the prosecutor concerning
such guilt or innocence. The real
question is, whether the defendant had
reasonable ground for believing that
the plaintiff was guilty of the charge
584

Evinence or Actions ror Mauiciovs Prosecutions.

vant informed his master, whose gun had been stolen, that a credible
person (one Robinson) had told him that he had seen the gun with a
young man in the village; and went on to inform the master, as the

made against him. This belief may
be founded upon facts within the
knowledge of the parties, or upon in-
formation derived from other persons.
If he has proof of the facts, in the
affidavit of another, and he believes
the truth of that person’s statement,
and proceeds against the plaintiff upon
that proof, and under the belief in its
truthfulness, he will be deemed to
have had probable cause for so doing.
It is sufficient that such information
was furnished to the defendant as of
itself would authorize and justify his
action. Miller v. Milligan, 48 Barb.
(N. Y.) 30. Where a person acted
bona fide upon the advice of counsel
in entering a prosecution, it is a good
defense, but he must show that he
acted in good faith upon such advice
after a fair statement of the case.
Ames v. Rathbun, 55 Barb. (N. Y.)
194; Potter v. Seale, 8 Cal. 217;
Walter v. Sample, 25 Penn. St. 275;
Leaird v. Davis, 17 Ala. 27; Williams
v. Vanmeter, § Mo. 339; Phillips ».
Bonham, 16 La, Ann. 387; Ash v. Mar-
low, 20 Ohio, 119; but if express
malice is shown, such defense is not
operative; Davenport v. Lynch, 6
Jones (N. C.), 545; Kimmel o. Henry,
64 Ill. 505; Cooper »v. Utterbach, 37
Md. 282; Sappington ». Watson, 50
Mo. 88; Sharpe v. Johnston, 59 id.
557; Stanton ov. Hart, 27 Mich. 539;
Wicker ». Hotchkiss, 62 Ill. 107. In
an action for a malicious prosecution
against the plaintiff, for assaulting the
defendant with a knife, the defendant
cannot introduce evidence that, before
the alleged assault, the defendant had
been informed that the plaintiff had
carried dangerous weapons, and had
been prosecuted therefor; nor that the
defendant, before the affray in which
the assault was pretended to have been
committed, saw the plaintiff lurking
about his barn. Bullock v. Lindsay,
9 Gray (Mass.), 30. Want of proba-
ble cause for a prosecution for perjury
is not established, in an action for
malicious prosecution, by proof that
the plaintiff was acquitted upon the
trial; that the defendants were inter-

ested, as members of a committee of a
town, in defending the action in which
the perjury was alleged to have been
committed, and which was pending on
exceptions at the time when the prose-
cution was instituted; that they pre-
sented to the grand jury a complaint,
containing a statement of their belief
that the plaintiff had been guilty of
perjury, and that no indictment was
found by the first grand jury to which
it was thus presented; and that the
plaintiff’s testimony, which was alleged
to be false, was not precisely as stated
in the complaint of the defendants; if
it also appears, to the satisfaction of
the court, that the plaintiff's testimony,
in relation to the matters in question,
was incorrect, and that various other
persons, besides the defendants, be-
lieved the charge of perjury to be well
founded. In such action, the question
whether on the plaintiff’s evidence, a
want of probable cause for the prose-
cution has been proved, is for ,the
court. Kidder v. Parkhurst, 3 Allen
(Mass .), 393. The question of proba-
ble cause is essentially one of law and
fact, it being the province of the jury
to determine whether the circumstan-
ces alleged are true, and of the court
to determine whether they amount to
probable cause. Burkett v. Lanata,
15 La. Ann. 337. The proof of malice
need not be direct; it may be inferred
from circumstances; and the want of
probable cause is presumptive evidence
of malice, subject, however, like all
presumptions, to be rebutted. Blass
». Gregor, 15 La. Ann. 421. Where
the evidence shows that the defendant
acted from motives of private interest,
and without probable cause to support
the prosecution, his action, under the
advice of counsel, will not exempt
him from __ liability. Glascock 2.
Bridges, 15 La. Ann. 672. The malice
of the prosecutor, and the vexation,
disgrace, and expense of the prose-
cuted, are not measured by the suffi-
ciency or insufficiency of the charge
on which the prosecution is instituted.
Stancliff 0. Palmeter, 18 Ind. 321.
Evmence or Actions ror Mauictous Prosroutions. 585

fact was, that he had brought Robinson and the accused together,
and had heard the accusation repeated in the presence of the accused ;
that they had then, at the proposal of the accused, gone together to
the place where Robinson stated he had seen the gun, namely, a barn
of the father of the accused; and that they there had found a gun
which Robinson said was not the gun he had seen there on the former
occasion. The master thereupon gave the accused into custody, and
the latter having been tried and acquitted, brought his action for
false imprisonment. The judge directed the jury that if the master
had acted on the information of his servant without making inquiry
of Robinson, he must be taken to have acted on hearsay evidence
and without reasonable and probable cause. But it was held, on
appeal, by the House of Lords (reversing the judgment of the court
of Exchequer Chamber) that the latter part of the information given
by the servant was an original account and not merely a confirmation
of the hearsay evidence contained in the first part of his information,
and that it was a misdirection by the judge to direct the jury that
there was no reasonable and probable cause for the arrest of the sus-
pected person, on the assumption that the information on which the
arrest had been ordered was derived from hearsay evidence only.'
And where the defendant having reasonable and probable cause for
giving the plaintiff in charge, persisted in the charge after explana-
tion given by a police officer; the judge directed the jury that on
such explanation the probable cause ceased, and that the only ques-

The remedy by action for malicious
prosecution is not confined to cases
where such action was commenced by
an arrest of the person. In all cases
where a suit is prosecuted maliciously
and without probable cause, after its
determination in favor of the defend-
ant therein, he has his remedy for the
damages sustained by him, to the ex-
tent of his expenses in excess of the
taxable costs. Closson v. Staples, 42
Vt. 209; Stapp v. Partlow, Dudley
(Ga.), 176. An action for malicious
prosecution will lie against a creditor
who effected the arrest and imprison-
ment of his debtor by alleging that the
demand was greater in amount than it
truly was, so as to hinder the debtor
from getting bail. It is true that in

order to sustain an action for malicious
prosecution, the law requires that the
proceedings which form the subject of
complaint should have been mali-
ciously instituted, and carried on,
without any reasonable or probable
cause; but there would ordinarily be
but little difference in the injury pro-
duced to the defendant, whether the
unfounded prosecution was carried on
without any demand whatever to jus-
tify it, or whether it was coupled with
a claim of real merit. So far as that
part of the prosecution is considered,
it is as wholly deprived of reasonable
or probable cause,asit would be when
made itself the sole subject of the
suit. Brown v. McIntyre, 43 Barb.
(N. Y.) 844.

1 Lister ». Perryman, 39 L. J, Ex. 177; L. R., 4 H. L. 521.

74
586 Evipence or Actions ror Mauicious Prosxcurtions.

tion was whether his subsequent conduct amounted to malice, it
was held that such direction was wrong; that the original facts
remaining unaltered, the reasonable and probable cause could not be
taken away by such explanation ; and a new trial was granted.’

Where, in an action for malicious prosecution, it appeared that the
plaintiff had been a traveler for the defendant and had been dis-
missed. Some time afterward the plaintiffs successor applied to
one P. for payment of an account alleged to be due to the defend-
ant, whereupon P. claimed to have paid £20 more than he had been
credited with, and produced a receipt of the plaintiff for such £20.
The defendant, on being informed of these facts, wrote to P., who
re-affirmed his statement and sent the receipt. The defendant then,
after consulting his attorney, charged the plaintiff with embezzle-
ment; and the magistrates, after investigation, dismissed the charge.
It appeared that there were other matters which, if known to the
defendant at the time of the charge, would have clearly constituted
a reasonable and probable cause; but it did not appear whether or
not the defendant knew of them at the time of making the charge ;
and it was held, that upon the facts as to P.’s case alone, the plain-
tiff had failed to show the absence of reasonable and probable cause ;
and that it was to be assumed the defendant knew of the other mat-
ters, as the plaintiff failed to show to the contrary.”

In an action against a railway company for a malicious prosecu-
tion and false imprisonment by their: servants, it is not for the com-
pany to show that they undertook the prosecution with a knowledge
of the testimony their servants were prepared to give; as the bur-
den of proof is with the plaintiff to show the absence of reason-
able and probable cause; and therefore where the attorney for a
company appeared before the magistrates to prosecute, and the plain-
tiffs were committed for trial, and afterward prosecuted by the com-
pany at the Quarter Sessions and acquitted; at the trial of the
actions for malicious prosecution, in order to show the absence of
reasonable and probable cause, the depositions of the servants of the
company taken before the magistrates were put in evidence, but
they contained evidence of assaults upon such servants and particu-
larly of an assault upon one of them in the execution of his duty

1 Musgrove o. Newell, 1 M. & W. * Brooks 2. Blain, 39 L. J. C. P. 1.
582; and 1 Tyr. & G. 957.
Evmencr or Actions ror Manicious Prosecutions. 587

as a constable; it was held, that if the facts stated in the depositions
were known or communicated to the attorney (and in the absence of
evidence to the contrary, the court would assume that they were),
the attorney, as the representative of the company might, as a pru-
dent and reasonable man, have €onsidered there was reasonable and
probable cause for the prosecution.!

Sec. 115. Deliberation of jury.

If it appear that the jury, upon the trial of the plaintiff, enter-
tained doubts upon the evidence, and deliberated as to his guilt after
the case was concluded, the fact is, it seems, evidence of a probable
cause.”

Sec. 616. If probable cause exist, action cannot be maintained.

In actions for malicious prosecution and arrest, the plaintiff must
prove malice and the absence of reasonable or probable cause. If
there be reasonable or probable cause, no malice, however distinctly
proved, will make the defendant liable ; but when there is no reason-
able or probable cause, it is for the jury alone to infer malice from
the facts proved.’

The action will not lie if the proceedings terminated in the con-
viction of the plaintiff, unless the conviction has since been quashed ;
and this whether there be an appeal from such conviction or not.‘
So in a case for maliciously laying an information under the game

Walker v. The 8. E. Ry. Co., and
Smith v. The Same, 39 L. J. C. P. 346;
L. R., 5 C0. P. 640.

2In Smith 2. Macdonald, 3 Esp. C.
7, Lord Kenyon held that if the jury
paused before they acquitted the plain-
tiff upon his trial for the offense, he
should hold that there was probable
cause for the prosecution. It does not
appear, whether in that case the evi-
dence rested upon the testimony of
the prosecutor, the defendant in the
action. It is also to be observed, that
there was no evidence to negative
probable cause, a circumstance in
itself sufficient to warrant a nonsuit.
See also Lilwal v. Smallman, Selw. N.
P. 1064; Golding v. Crowle, B. N.
P. 14.

3 Mitchell ». Jenkins, 5 B. & Adol.
588; and see supra, p. 474.

If probable cause is established, no
degree of malice will warrant a ver-
dict for the plaintiff. Both want of
probable cause and the existence of mat-
ice are indispensable elements to war-
rant a recovery, and the absence of
either defeats the cause of action.
Ewing v. Sanford, 21 Ala. 157; Lohr-
fink v. Still, 10 Md. 530; Wheeler »v.
Nesbitt, 24 How. (U. 8.) 544; Walter
». Sample, 25 Penn. St. 275; Wilson
v. King, 39 N. Y. Superior Ct. 384;
Cooper v. Utterback, 37 Md. 282; Kim-
mel v. Henry, 64 Ill. 505; Sharpe ».
Johnston, 59 Mo. 557; Thompson v.
Force, 65 Ill. 370; Mitchinson v. Cross,
58 id. 366; Levy ». Brannan, 39 Cal.
485.

4 Basebe v. Matthews and Wife, 36
L. J. M. C. 93.
588 Evmence or Actions ror Matricious Prosecutions.

laws; there having been a conviction and no appeal, it was held
that the action was not maintainable.

Sec. 617. Proof of the offense charged.

It is obviously of importance for the defendant to prove that the
felony or offense charged has been committed,’ and to be prepared
with proof of such circumstances as tend to throw suspicion on the
plaintiff.’ This, however, will be insuflicient as evidence of reason-
able and probable cause, in a defense to the action ;‘* so also in case
of express proof that the defendant knew that the prosecution was
without foundation. In the case of Johnson v. Browning,’ where
it appeared that no one was present at the time of the supposed rob-
bery but the wife of the defendant in the action, Lord Horr admitted
evidence of what she swore at the trial of the indictment; but it is
obvious that this was done under the impression that it was incumbent
on the defendant to establish the fact of probable cause, although no
evidence was given to establish the negative.

Sec. 618. Evidence of character.

Where the plaintiff has been arrested on a charge of larceny, it
has been doubted whether the defendant, after having given some
evidence of probable cause, can give evidence to prove that the
plaintiff was a man of bad character ;° but it seems that although
such evidence affords no presumption of probable cause in the par-
ticular instance, yet that it is matter admissible in mitigation of

damages.’

' Mellor v. Baddeley, 2 Cr. & Mees.
675.

*In Johnson v. Browning, 6 Mod.
216. See Samuel v. Payne, Dougl.
359; Ledwith v, Catchpole, Cald. 291.

3See Knight ». Jermin, Cro. Eliz.
134; Pain v. Rochester, id. 871.

4Busst v. Gibbons, 30 L. J. Ex. 75.

56 Mod. 216. And see B.N. P. 14,
citing Cobb 2. Carr.

*In the case of Rodriguez ». Tad-
mire, 2 Esp. C. 720, Lord Kenyon
admitted general evidence to that
effect. In Newsam ». Carr, 2 Starkie’s
C. 67, cor. Woop, B., where a witness
was asked whether the plaintifi’s
house had not been searched on for-
mer occasions, and whether he was not
aman of suspicious character, —Woop,

B., overruled the question, observing
that in actions of slander such evi-
dence would be admissible to mitigate
the damages, but that in the present
case it would afford no evidence of
probable cause.

" Scott v. Fletcher, 1 Overt. (Tenn.)
488; Miller v. Brown, 3 Mo. 127; Fitz-
gibbon v. Brown, 48 Me. 169; Bost-
ick » Rutherford, 4 Hawks (N. C.),
83; but he cannot prove special acts
of the defendant, he must confine his
evidence to that of general bad char-
acter, nor can he show that he was
generally believed or generaily sus-
pected to be guilty of the particular
oe Brainerd v. Brackett, 33 Me.
Eviwencre or Actions ror Maticious Prosgcu' ions. 589

A plaintiff cannot, upon the trial, object to the inrSufficiency of a

plea of justification in point of law. /
9

st
Where there is a special plea of dere setting out certain
facts as constituting reasonable and probable feause, or proof of those
facts, it is a question of law for the judge ‘whether the plea is made
out ; and it is not necessary that all the Plea should be proved; it
is saificiont to prove so much of it as ind the opinion of the judge

Sec. 619. Evidence as to the plea of justification.

    
   
 

the plea, is either not proved, or is

A plea of justification cannot bef supported upon the evidence of
facts and circumstances which have come to the defendant’s knowl-
edge, for the first time, since the harge was made.’

‘Edmonds v. Walter, 3 Starkie’s C.

But see McRae ». O’Neal, 2 Dev. (N.
7.
? Hailes ». Marks, 7 H. & N. 56; 3

C.) 167, contra. Also, even ‘though the

defendant did not have probable cause

L, J. Ex. 389. for the arrest, yet the conviction of
3 Same. the plaintiff upon facts subsequently
‘Delegal ». Highley,3 Bing. N¥#C. ascertained operates as a bar to the

950; 5 Scott, 154. And see iffra, action. Parker v. Huntington, 7 Gray

‘Evidence in ’ support of plea off jus- (Mass.), 36.

tification.”’

 
590 AssavLT AND Fatsz ImprisonMENT.

\. CHAPTER XXVIU.

ASSAULT AND FALSE IMPRISONMENT.

Sec. 620. Assault and false imprisonment.
621. Mitigation of damages.
622. Removal by magistrate.
623. Former recovery.
624. Joint actions, and actions against several.
625. Practice under the J udlicature act.
626. Justices of the peace. \

Sec. 620. Assault and false imprisonment.
The damages in actions for assault or ralse imprisonment will also

vary in the same manner, according to the circumstances of the case.
The same remarks will also apply to the evidence which may be
adduced in proof of probable cause. Where the action was for an
arrest in Bristol, without reasonable and probable cause, it was held
that the defendants, who were constables of Oxford, might show in
mitigation of damages, that they had taken the plaintiff on suspicion
of stealing a horse; but asthe arrest had been made out of their
jurisdiction, they could not give the matter in evidence, under the
general issue, as an entire defense by viriue of the Stat. 25 Jac. I,
ch. 12.' A justification of a false imprisonment, on the ground that
the defendant had reasonable and probable cause to suspect the plain-
tiff of being guilty of a felony, is very different in its effect upon
the damages from an unsuccessful plea that the plaintiff was and is
guilty of the felony. The former is in the nature of an apology
for the defendant’s conduct. The latter is a persistence in the original
charge, which is in itself aground for aggravation\ of damages. And
it makes no difference that the plea was abandoned at trial, the de-
fendant’s counsel saying that the charge was ungrounded ; and that
the plea was the act of the pleader, and not of the \defendant.’
\

Sec. 621. Mitigation of damages. \
[*403] *No evidence which if pleaded would be a bar can be given
in evidence in mitigation of damages, Accordingly, where

‘Rowcliffe ». Murray, Car. & M. oan ». Foulkes, 12M. & W.
613. .
Assault AND Fartse ImprisonMENT.

591

the action was for an assault, and there was no plea of justification,
but evidence was offered that the plaintiff was one of the crew on
board the defendant’s ship, and that the beating was in consequence
of his misconduct, it was ruled that, as these facts might have been
pleaded in bar, the jury should not consider them in estimating

damages for the injury inflicted.

1 Watson v. Christie, 2 B. & P. 224.

The court never interferes with the
discretion of the jury as to the amount
of damages for an assault and false
imprisonment, unless they are grossly
excessive, or clearly founded upon a
mistaken or improper view of the mat-
ter. The circumstances of time and
place as to when and where the assault
was committed, and the degree of
personal insult, must be considered in
estimating the nature of the offense
and the amount of damages. Itis a
greater insult to be beaten in a public
than in a private place. When the as-
sault is accompanied by a false charge,
affecting the honor, character, and. po-
sition in society of the plaintiff, the
offense will, of course, be greatly ag-
gravated,and the damages proportion-
ably increased ; and if the plaintiff has
been assaulted and imprisoned under
a false charge of felony, where no fel-
ony has been committed, or where
there was no reasonable ground for
suspecting and charging the plaintiff,
exemplary damages will be recovered.

Circumstances of provocation and
excuse may be given in evidence, in
mitigation of damages, so long as they
do not amount to a justification, and
could not be pleaded assuch. But if
they constitute an answer to the action
by way of justification for the assault,
they must be pleaded, and cannot then
be given in evidence in reduction or
mitigation of the damages. If, in an
action for an assault, it is contended
that the blow was unintentionally
struck, the defendant intending to
strike A, when he accidentally in the
scuffle struck B, nevertheless, as the
defendant struck. the plaintiff, the
plaintiff is entitled to a verdict,
whether it was done intentionally or
not, but the intention is material in
determining the amount of damages.
James v. Campbell, 5 C. & P. 372. If
it be proved that the blow was unin-

tentionally struck, and that an apology
was immediately offered, the evidence
would tend materially to reduce the
amount of damages.

Where the plaintiff, in an action for
an assault and false imprisonment,
sought to make the defendant respon-
sible for the consequences of a remand
by a magistrate, it was held that he
was liable only for the first imprison-
ment and taking before the magis-
trate, and not for the remand or any
subsequent detention thereunder, they
being the acts of the justice; State 0.
Guest, 6 Ala. 778; but in an action for
a malicious prosecution, the defendant
will be liable for the injury resulting
from a remand. Where a railway
company removed a passenger from
the train (without any unnecessary vio-
lence), under a mistaken impression
that he had no ticket, and the passen-
ger left a pair of race-glasses behind
him, it was held he could not recover
the value of them as part of the dam-
ages for the assault, although the court
admitted it would have been otherwise
had he lost any part of his property
in a scuffle with the railway servants.
Glover ». Lond. & 8. Western Rail Co.,
L. R., 3 Q. B. 26.

Where several persons have associ-
ated themselves together in the pur-
suit of a common object, and they all
trespass in following out the common
design, each is answerable for the
whole of the damage done by all. And
whenever two persons have so con-
ducted themselves as to be liable to be
jointly sued, each is responsible for
the injury sustained by their common
act. The true criterion of damage in
such cases is the whole injury which
the plaintiff has sustained from the
joint act of all. Where, therefore,
two persons have a joint purpose, and
thereby make themselves joint-tres-
passers, and one beats violently and
the other a little, the real injury is the
592

Sec. 622. Remand by magistrate.

AssauLt AND Faxse IwerIsoNMENT.

Where the action is trespass for false imprisonment, damages can-
not be given for a remand by the magistrate, which is a distinct

aggregate of the injury received from
both, and each is responsible for all
the damage; but the malignant mo-
tive of one party cannot be made a
ground of aggravation of damage
against the other, who was altogether
free from any improper motive. Clark
». Newsam, 1 Exch. 140.

In all cases of serious assault the
jury should take into their consider-
ation, in assessing the damages, the
probable future injury that will result
to the plaintiff from the act of vio-
lence perpetrated by the defendant,
for the damages, when given, are
taken to embrace all the injurious con-
sequences of the wrongful act, un-
known as well as known, which may
arise hereafter, as well as those which
have arisen, so that the right of action
is satisfied by one recovery. Thus,
where the plaintiff had received a
blow on the head, and sustained little
apparent injury, and recovered small
damages; and afterward, and in conse-
quence of the blow, a portion of his
skull came away, and it then appeared
that the skull had been fractured, and
he then brought a second action,
which was attempted to be supported
on the ground that the former recovery
was fora mere battery and this for
mayhem, it was held that no action
lay, for there was but one blow, and
that was the cause of action in both
suits and not the consequences. And
the distinction was pointed out be-
tween this case, and the one of con-
tinuing nuisance, where each continu-
ance was a fresh’ nuisance. Fetter
v. Beal, 1 Ld. Raym. 339. No fresh
action, therefore, arises by reason of
subsequent new damage resulting
from the wrongful act, if the act itself
were objectionable; for, if the action
were brought, all the damages which
he ever could recover for that injury
could be recovered by the plaintiff in
that action if he succeeded. Coxn-
RipGE, J., Bonomi »v. Backhouse, 27
L. J. Q. B. 390.

In an action for an assault and bat-
tery, damages should be given as
nearly as possible in conformity to the

consequences which have ensued and
those likely to ensue therefrom, and in
estimating them, the jury is not to be
restricted to the actual loss, but may
consider the pain and suffering, the
wounded feelings of the plaintiff, and,
if the act was wanton, may give
vindictive damages. Schelter v. York,
Crabbe (U. 8.), 449; Slater v. Rink,
18 Ill. 527; Sheridan v. Furber, 1 BI.
& H. (U. 8.) 428; Gairther o. Blowers,
11 Md. 536. Wounded feelings; West
v. Forrest, 22 Mo. 344. Vindictive
damages; Wilson v. Middleton, 2 Cal.
54; Causee ». Anders, 4 Dev. & B.
(N. C.) 246; Cook v. Ellis, 6 Hill (N.
Y.), 466; Day v. Woodworth, 18 How.
(U. 8.) 363. And in all cases, unlest
the provocation is such as to amouns
to a legal justification, the damages
should be compensatory. Birchard v.
Booth, 4 Wis. 67.

Money paid by the attorney of the
plaintiff to procure the release of the
plaintiff from an unlawful imprison-
ment is recoverable as part of the dam-
ages naturally and directly resulting
from the wrongful act, provided the
plaintiff claims them in his declaration,
‘for aman may say that he has been
forced to pay that which another, who
is his agent, has been forced to pay
for him.” Pritchet ». Boevey, 1 Cr. &
M. 778. The allegation that the plain-
tiff has been forced to pay, etc., is a
material allegation, and proof of actual
payment is necessary to support it.
Every expense that the plaintiff nec-
essarily incurs in order to restore him-
self to a complete state of freedom
from imprisonment is recoverable as
part of the damages, if the plaintiff
has claimed them in his declaration.
Where a plaintiff, by being bailed,
obtained only an imperfect release,
being in the hands and at the mercy
of persons who might at any time
render him back to jail, it was held
that the expense of removing himself
from that position was only one of the
steps necessary for completing his dis-
charge from the original imprison-
ment, and that, if it were necessary
for the plaintiff to set aside an in-
AssauLtT AND Faust ImprisonMENT. 593

judicial act proceeding from himself alone.' The action should be
in case, alleging malice and want of probable cause, or trespass
against the magistrate.”

Sec. 623. Former recovery.

On the other hand, a recovery in an action for false imprison-
ment is no bar to another action for a malicious prosecution.
They are altogether different causes of action. The taking a
man up ona charge of felony is distinct from going before a grand
jury, and falsely and maliciously taking an oath to get a bill
found against him, and then going before a petty jury and trying
to induce them to find him guilty. Consequently, in the action
for false imprisonment, none of the circumstances connected
with the subsequent prosecution can be proved, or allowed for in

damages.”

quisition in order to restore himself to
a complete state of freedom, he was
entitled to recover the expense thereof,
as part of the damages of the origi-
nal wrongful act. Foxall o. Barnett,
2 Ell. & Bl. 928; 23 L. J. Q. B. 7.

In an action for false imprisonment,
even where there is no malice, the
damages should be compensatory, and
the jury are to take into consideration
the plaintiff's loss of time, interrup-
tion to his business, and his suffering,
bodily and mental, arising from the
act. The actual pecuniary loss is never
the measure. The jury not only may,
but should consider the indignity to
the plaintiff and the mental and bodily
suffering incident to the act, and say,
in view of all the facts, how much
the plaintiff ought to have, and the
defendant ought to pay, for the in-
jury. Parsons v. Harper, 16 Gratt.
(Va.) 64; Page vo. Mitchell, 13 Mich.
63; Blythe o. Tompkins, 2 Abb. Pr.
(N. Y.) 468; Jay ». Almy, 1 Woodb.
& M. (U. S.) 262; Tracy v. Swartwout,
10 Pet. (U.8.) 80. And where there is
evidence of malice or bad faith, ex-
emplary damages may be given; Day
». Woodworth, 18 How. (U. 8.) 3638;
Brown v. Chadsey, 39 Barb. (N. Y.)

1Lock 0, Ashton, 12 Q. B. 871.
2 Morgan v. Hughes, 2 T. R. 225,

231.
15

263; but not otherwise. Williams ».
Garrett, 12 How. Pr. (N. Y.) 456.

In an action for false imprisonment
in giving the plaintiff in charge to a
police-officer, it may be shown in
mitigation of damages, that the plain-
tiff had for several days annoyed and
insulted the defendant, by following
him about the streets, and telling him
to pay his debts. Thomas v. Powell, 7
C. & P. 807; and see post, ch. 22. But
all facts and circumstances amounting
to a justification, or to a contradiction
of a material fact admitted upon the
record, must be specially pleaded, and
cannot be given in evidence in mitiga-
tion of damages. Linford ». Lake, 27
L. J. Exch. 334, In an action of assault,
therefore, a defendant cannot, under
a plea of not guilty, prove that he
committed the assault in self-defense,
or in fear of his life; and a sheriff
who has imprisoned the plaintiff can-
not, if he pleads not guilty only, give
evidence of his writ in mitigation of
damages. Speck »v. Phillips, 5 M. & W.
281. (
The recovery of damages in an ac-.
tion for false imprisonment is no bar

‘toan action for a malicious prosecu-

tion. Guest ». Warren, 9 Exch. 379;
23 L. J. Exch. 121; post, ch, 22.

3 Guest ». Warren, 9 Ex. 379.
594 AssauLt AND Fazst Imprisonment.

Sec. 624. Joint actions, and actions against several.

Where the action is a joint one, by or against several, the rule
used to be that only those circumstances which proved a joint injury
to or from all could be compensated for. Therefore, where several
plaintiffs sued, on account of a joint imprisonment, they might re-
cover in respect of money which they paid jointly for their release,
but not on account of the suffering caused by the imprisonment,
for that was a separate injury to each.’ And so in the case of a
joint trespass, the true measure of damage was the whole injury
which the plaintiff had suffered from the joint act. But aggravated
damages could not be given on account of the peculiar malice of
[#404] one. *In such a case it was understood that the plaintiff

ought to have elected the party against whom he meant to
get aggravated damages.”

Sec. 625. Practice under the judicature acts.

But since the judicature acts the first part of this rule no longer
exists, as it has been held in the court of appeal that persons who
have been injured by the same tortious act, and who would formerly
have had to bring separate actions, may now join in one action, and
their damages ought to be severally assessed.” Therefore, each peti-
tioner in such an action can recover for his separate injury. It
remains to be seen whether now that judgment is to be given against
defendants according to their respective liabilities,‘ and it is not neces-
sary for every defendant to be interested as to all the relief prayed
for,® a petitioner will not, be allowed to recover aggravated damages
against those defendants who were party to the joint act who were
actuated by peculiar malice.

Sec. 626. Justices of the peace.

It may be as well to remark that every action against a justice of
the peace, for any thing done by him in the execution of his duty
as such justice, and within his jurisdiction, must allege the act to
have been done maliciously and without probable cause.° Where
he has no jurisdiction, or exceeds his jurisdiction, he may still be

'Haythorn ». Lawson, 8 OC. & P. ® Booth v. Briscoe, 2 Q. B. D. 496.
196; Barratt ». Collins, 10 Moo. 446. ‘ Ord. 16, Rule 3.

? Clark 1. Newsam, 1 Ex. 181, 189. 6 Ord. 16, Rule 4,

And see Gregory v. Cotterell, 22 L. J. 11 & 12° Vict., ch. 44, § 1.
Q. B. 217.
AssauLt anp Fase Imprisonment. 595

sued in trespass, subject to certain provisions as to quashing the con-
viction.! And in no‘case is the plaintiff to have more than two-
pence damages, where it appears that he was guilty of the offense of
which he was convicted, or liable by law to pay the money ordered
to be paid, and that he has undergone no greater punishment than
that assigned by law to the offense of which he was convicted, or for -
non-payment of the money ordered.’

1S 2 28, 13,
596 Prrsonat Insury rrom NEGLIGENCE.

CHAPTER XXIX.

PERSONAL INJURY FROM NEGLIGENCE.

Sec. 627. Personal injury caused by negligence.

628. Damages not too remote.

629. Negligent management or navigation of vessels.

630. Damages when the plaintiff is insured against loss, or has received
full indemnity under a contract of insurance.

631. Damages recoverable by personal representatives in cases of death
from negligence.

632. No deduction in respect of insurance.

Sec. 627. Personal injury caused by negligence.

Very little can be said with certainty as to damages for personal
injuries inflicted by negligence. Loss of time during the cure, and
expense incurred in respect of it, are of course matters of easy

calculation. Painand suffering undergone by *the plaintiff
[*405] oe a

are also a ground of damage:! And in this point such an
action differs from one brought by the personal representatives,
where a death has ensued.” Any permanent injury, especially when
it causes a disability from future exertion, and consequent pecuniary
loss, is also a ground of damage. This is one of the cases in which
damages most signally fail to be a real compensation for the loss
sustained. In one case Pars, B., said, “It would be most unjust
if, whenever an accident occurs, juries were to visit the. unfortu-
nate cause of it with the utmost amount which they think an
equivalent for the mischief done. Scarcely any sum could com-
pensate a laboring man for the loss of a limb, yet you do not in
such a case give him enough to maintain him for life.” No rule
can be laid down in such a case; and although juries are frequently
cautioned not to let their verdict be influenced by the poverty of
the plaintiff and the wealth of the defendant, yet the caution is
probably seldom much attended to. To examine how far it is de-

: 18Q. B. 111. Brett, J., Rowley ». London and N.
: See post, p. 675. W.Ry. Co., L. R., 8 Ex. 221; 42 L.
Armsworth v. 8.E. Ry. Co.,11 Jur. J. Ex. 153.
760; cited 18 Q. B. 104. See, too, per
Prrsonat Insury rrom NEGLIGENCE. 597

serving of very strict obedience, would furnish material for much
longer discussion than I wish to yield to it here.

The damages recoverable for personal injuries will mainly depend
upon the nature and character of the injury, and the manner in
which it was inflicted. If it was the result of mere negligence,
that amounts to little more than an accident ; less damages are recov-
erable than in cases where it is of a willful or insolent character.’
Because in the latter case, the jury may go beyond the actual dam-
age, and give something by way of example, while in the former
they are restricted to the actual damage.’ The rule is that, when-
ever the injury complained of has been inflicted maliciously or wan-
tonly, and with circumstances of contumely or indignity, the jury
are not limited to the ascertainment of a simple compensation for
the wrong committed; but may give against the tort-feasor punitive
or exemplary damages. Malice in this rule of law is not merely the
doing of an unlawful or injurious act; the word implies that the
act complained of was conceived in the spirit of mischief, or of crim-
inal indifference to civil obligations.°

As previously stated, where the injury was inflicted as the result
of mere negligence, the recovery is limited to the injury actually
sustained, and remote consequences are not to be considered.* No
definite test by which in all cases it can be determined, what are and
what are not the remote consequences of an act, can be given, but
in each case the question must be resolved by its peculiar facts and
circumstances. In all cases, however, consequences that are, or are
likely to be, the direct, natural or proximate result of the act, dam-
ages may be recovered, and, as but one action can be brought to
recover damages for an injury to the person, the person injured is
not obliged to wait until all the consequences of the injury are fully

'Emblen o. Myers, 6H. & N. 54. Association v. Loomis, 20 id. 235;

2 Goetz v. Ambs, 27 Mo. 28; Moody
uv. McDonald, 4 Cal. 297; Allison »,
Chandler, 11 Mich. 542; Floyd vw.
Hamilton, 33 Ala. 235; Williams 2.
Reil, 20 Ill. 147; St. Peter’s Church v.
Beach, 26 Conn. 355; Fleet ». Hollen-
kemp, 13 B. Monr. (Ky.) 219.

3 Philadelphia & R. R. Co. ».
Quigley, 21 How. 202; 8. P., Dibble
vy. Morris, 26 Conn. 416; Dean v.
Blackwell, 18 Ill. 336; Peoria Bridge

Ously v. Hardin, 28 id. 403; Balti-
more, etc., R. R. Co. v. Blocher, 27
Md. 277; Bell v. Morrison, 27 Miss.
68; Hopkins v. Atlantic, etc, R. R.
Co., 86 N. H. 9; Wallace v. Mayor,
etc., of N. Y., 2 Hilt. (N. Y.) 440; 9
Abb. Pr. 40; 18.How. Pr. 169.

4Moor v. Teed, 3 Cal. 190; Salem
Bank v. Gloucester Bank, 17 Mass. 1;
Ryan v. N. Y. Cent. R. R. Co., 35 N.Y. .
210.
598 PrrsonaL Insury rrom NEGLIGENCE.

developed; he may sue whenever he thinks proper, and recover
damages for both past and future pain of body, as well as for past
and future deprivation of health or of any of his bodily powers.
But nothing prospective should be conjectural.

In an action to recover damages for an injury, it is not erroneous
to charge the jury that in ascertaining the amount of damages, it
would be proper for them to consider the bodily pain and suffering
which had occurred, or was likely to occur, in consequence of the
injury, but that they could not act on conjecture as to the prospect-
ive condition or situation of the plaintiff; they could only regard,
in respect to the future, what the evidence rendered reasonably cer-
tain would necessarily and mevitably result from the original
injury.

A plaintiff, for the purpose of arriving at his probable loss, may
show the kind of business he was engaged in, the remuneration
received by him therefrom, and the disabling effect of the injury, as
to the prosecution of that business. The extent of the damage is to
be ascertained from the disabling effect of the injury, and its prob-
able duration* and the actual expenses to which the plaintiff has
been put in consequence of the injury, and expenses since, as well
as before suit brought, may be recovered for, as also probable future
expenses,’ and the mental pain and suffering induced by the injury
is also a proper element of damage.’

In cases of injuries to chattels from negligence, the measure of
damages is the actual deterioration in the value of the chattel, and
if the owner has been deprived of the use of the chattel, and has
been obliged to hire another chattel, and been put to expense, and
has sustained special damage, which is the natural and necessary
result of the wrongful act, such damages are recoverable if claimed
in the plaintiff's declaration. In an action for an injury to a horse
from negligent driving, it was held that the proper measure of dam-
ages was the keep of the horse at a farrier’s, the amount of the far-
rier’s bill, and the difference between the value of the horse at the

‘Curtiss », Rochester, etc., R. R. 109; Hopkins v. Atlantic R. R. Co.,
Co., 20 Barb. (N. Y.) 282. 36 N. H. 9; Nones v, Northouse, 46

Wade v. Leroy, 20 How.(U. 8.) Vt. 587; Lindsey v. Danville, 46 Vt.
oF Ballouv, Farnum, 11 Allen (Mass.), 144; Peoria Bridge Association 9.

? Loomis, 20 Ill. 285; Hunt v. Ho
* McLaughlin v. Corry, 77 Penn. St. id. 544, ¢ vt
Persona Insury rrom NEGLIGENCE. 599

time of the accident and at the time of the commencement of the
action.

Sec. 628. Damages not too remote.

Where, through the default of a coach proprietor in neglecting to
provide proper means of conveyance, a passenger is placed in so
perilous a position as to render it prudent for him to leap from the
coach, whereby his leg is broken, the proprietor will be responsible
for the damage, though the coach be not actually overturned.’ But
if the negligence of the defendant only cause some personal incon-
venience to the plaintiff, and the injury is proximately caused by the
plaintiff unreasonably trying to remedy such inconvenience, the
defendant will not be liable. Thus, where from a defect in the
latch of a railway carriage, the door flew open, and a passenger, in
endeavoring to shut it, fell out, it was held that the company were
not responsible.*

Sec. 629. Negligent management or navigation of vessels.

The liability of a ship-owner for damage done by the negligent.
management of his vessel, causing a collision with another vessel, is,
as we have seen, limited to the value of his vessel and freight at the
time of such collision; and if the vessel instantly founders, he is not
thereby exempt from liability... The value is to be taken at the
moment of collision.” Where the plaintiff, in consequence of the
collision, has been obliged to avail himself of the assistance of per-
sons who demand an exorbitant sum for salvage, and it is reasonable
and prudent to resist this demand, and costs are incurred in resisting
it, the plaintiff will be entitled to recover these costs, if he claims
them in his declaration as part of the damages. The proceedings
in the court of admiralty, in cases of collision, are, as we have seen,
generally speaking, against the ship; and where both vessels are
found to blame, and the merchant shipping act does not preclude
the recovery of damages, the ship-owners can only recover a moiety

' Moor v. Teed, 3 Cal. 190; Kepler 4 Adams v. Lancashire and York-
v. Hyer, 48 Ind. 499; Croaker v, Chi- shire Ry., L. R.,4 0. P. 739. See
cago, etc., R. R. Co., 36 Wis. 657; Re United Service Co., L. R., 6 Ch.
17 Am. Rep. 504. App. 212.

* Hughes v. Quentin, 8 C. & P. 7038. 5 Brown v. Wilkinson, 15 M. & W.

3 Jones v. Boyce, 1 Stark. 493, cited 391.

in Wilson v. Newport Dock Co., L. R., 6 The Mary Caroline, 3 W. Rob.
1 Exch. 187. 101.
600 PersonaL Insury rrom NEGLIGENCE.

of the damage which they have respectively sustained ; and the same
rule applies to actions by the owners of the cargoes on board the
delinquent ships.! Nor can the one recover salvage from the other
in such a case.”

Sec. 630. Damages when the plaintiff is insured against loss, or has received
full indemnity under a contract of insurance.

The recovery by the plaintiff of full compensation for the loss or
damage his property has sustained under a contract with insurers
cannot be given in evidence in reduction of damages in an action
against the wrong-doer who has done the mischief. The plaintiff's
contract with the underwriters or insurers is res inter altos acta, of
which the defendant who is sued for negligence cannot avail himself.
If it were not so, the wrong-doer would take the benefit of a policy
of insurance without paying the premium.’ A plaintiff, however,
who has received a full indemnity for his loss under a contract of
insurance, and has afterward recovered compensation in an action
for damages against the wrong-doer, is not entitled to a double satis-
faction, but is bound to hand over the damages to the insurer or
underwriter, who is the person really damnified by the wrongful
act.

Sec. 631. Damages recoverable by personal representatives in cases of death
from negligence.
_ In all actions by the personal representatives of persons killed by
negligence, brought under the 9 & 10 Vict., ch. 93, to recover dam-
ages proportioned to the injury resulting from his death to the per-
sons for whose benefit the action is brought, the jury, in assessing
the damages, must confine themselves to injuries of which a pecu-
niary estimate may be made, and cannot lawfully increase them by
adding a solatium to those persons in respect of the mental suffer-
ings occasioned by such death. They cannot, therefore, lawfully
inquire into the degree of mental anguish which each member of
the family has suffered from the bereavement, and cannot take into
consideration the mental sufferings of a widow or child for the loss
of a husband or parent.* It is clear, also, that the damages are not
1 Tindall v. Bell, 11 M. & W. 228. 4 Yates 1. Whyte, 4 B. N. C. 283.

* The Milan, ante, Post, ch. 22.

age Capella, L. R., 1 Adm. & Eccl.
Personat Insury rrom NuaricEncz. 601

to be given merely in reference to the loss of any legal right against
the deceased, which might have been turned to profit if he had lived,
and which has been lost by his death, for the damages recovered are
to be distributed amongst the relations only, and not to all indi-
viduals sustaining loss; and, accordingly, the practice has been to
ascertain what benefit could have been claimed from the deceased,
if he had lived, by the person seeking to obtain damages; and if the
latter can show that he had a reasonable expectation of pecuniary
benefit from the continuance of the life, and is also within the
requisite degree of relationship, his claim may fairly be considered
by the jury in assessing the amount of damages.!_ Thus the loss of
the benefit of education and of the comforts and conveniences of
life, and of an expected pecuniary provision, may, as we have seen,
be taken into consideration ; and it is fora jury to say, taking into
account all the uncertainties and contingencies of the particular case,
whether there was such a reasonable and well-founded expectation of
pecuniary benefit as can be estimated in money, and so become the
subject of damages.? No damages can be given in respect of funeral
expenses and mourning, there being no language in the statute refer-
ring to these expenses and rendering them recoverable.?

Sec. 632. No deductionin respect of insurance.

No deduction can be made from the amount payable to the
plaintiff on the ground that he had insured his life against accident,
and had recovered from the insurance office full compensation for
the injury.“ If such a deduction were allowed, the obvious result
would be, that the wrong-doer would have received the full benefit
of the insurance, without paying any of the prwmia. In fact that
the injured person would be worse off, to the full extent of the
premia and interest upon them, than if he had never insured his
life at all.*

‘Blake v, Mid. Rail. Co., 21 L. %Pym v. Gt. North. Rail. Co., ante.
J. Q. B. 238; 18 Q. B. 93; Arms-' 4 Daltonv.S.E. Rail. Co.,.4 C.B.
worth v. 8. E. Rail. Co., 11 Jur. 759. (N.S.) 296; 27 L. J.C. P. 227.

2 Franklin o. S. E. Rail. Co., 3 H. 5 Bradburn v. G. W. Ry. Oo., L. R.,

& N, 214, 7 10 Ex. 1; 44 L. J. Ex. 9
6
602 AOcTIONS BY THE CREDITOR AGAINST THE SHERIFF.

CHAPTER XXX.

ACTIONS AGAINST SHERIFF.

Sec. 633. Actions by the creditor against the sheriff in replevin.
634. Stat. 19 and 20 Vict., ch. 108.
635. Extent of liability upon replevin bond.
636. Damages against sheriff.
637. When bond is lost.
638. Damages for breach of other duties.
639. When it is necessary to prove actual damage.
640. Arrest on mesne process. e
641. Arrest on final process.
642. Actions for escape. Must be in case. Measure of damages.
643. Action for amount levied.
644. Actions by the debtor.
645. Extortion.
646. Form of declaration.
647. Only taxed costs recoverable.

Sec. 633. Actions by the creditor against the sheriff in replevin.

Actions against the sheriff are either by the creditor, for some
neglect of duty which deprives him of his proper remedy against
his debtor; or by the debtor, or supposed debtor, or his representa-
tives, for some unlawful exercise of authority against him.

[406] *One of the most common of these arose before the passing

of 19 and 20 Vict., ch. 108, out of the action of replevin. Stat.
11 Geo. TI, ch. 19, § 23, enacted that sheriffs and other officers
granting replevin should take from the plaintiff, and two responsible
persons as sureties, a bond in double the value of the goods distrained,
conditioned for prosecuting the suit with effect, and without delay,
and for a return of the goods. By § 22, if the plaintiff in replevin
should discontinue, be nonsuited, or have judgment against him, the
defendant should recover double costs. Stat. 5 & 6 Vict., ch. 97, §
2, enacted that, instead of double costs, the defendant should have
such full and reasonable indemnity as to all costs, charges, and ex-
penses incurred in and about the suit, as should be taxed by the
proper officer.
Actions BY THE CREDITOR AGAINST THE SHERIFF. 603

Sec. 634. Stat. 19 and 20 Vict., ch. 108.

By 19 and 20 Vict., ch. 108, §§ 63, seqq., the powers and responsi-
bilities of sheriffs with respect to replevin bonds and replevins were
put an-end to; and the registrar of the county court of the district
in which the distress subject to replevin is taken, is empowered to
approve replevin bonds and grant replevins, and issue all necessary
process. The goods are to be replevied to their owner on his giving
security, to be approved by the registrar, for an amount suflicient-to
cover the rent or damage and probable costs of the cause, condi-
tioned to prosecute the action with effect and make return of the
goods. The security isto be a bond with sureties to the other party,
or a deposit in money. The registrar is bound to use proper discre-
tion in approving replevin bonds,! and it would seem, that if he is
guilty of negligence an action will lie against him at the suit of the.
party damnified.” In such case the principles acted upon in actions
against the sheriff will apply.

If the sheriff failed to take a bond, or took one with insufficient
sureties, an action upon the case lay against him, and in such an ac-
tion he was liable to the same extent as the sureties *would [#407]
have been, had he done his duty.* The question then was,
to what extent were the sureties liable ?

Sec. 635. Extent of liability upon replevin bond.

The extreme limit of liability was, in all cases, the penalty of the
bond, and the costs of suing upon it... Within this limit, however,
the liability might vary ; and for a long time there was great doubt
as to the rule by which the variation was to be regulated. It is
obvious that the rent distrained for might either be greater or less
than the value of the goods distrained. Accordingly, where it was
greater, the struggle on the part of the plaintiff was to extend the
damages to the whole amount due; where it was less, to the whole
value of the goods. On the other hand, the sheriff tried to limit
his liability in all cases to the value of the goods, and to escape all

1 Young ». Brompton, etc., Water- ‘ Hefford v. Alger, 1 Taunt. 218;
works Co., 1 B.&8. 675; 31L.J.Q. Jeffery v. Bastard, 4 Ad. & Ell. 829;
B. 14. per LITTLEDALE, J., Evans v. Brander,

22 Ch. Arch. Pr. 1104, 12th ed. 2H. BL. 547; overruling Concanen v.

*Evans v. Brander, 2 H. Bl. 550; Lethbridge, 2H. Bl. 36.

Baker v. Garratt, 3 Bing. 56, 59; Paul
v. Goodluck, 2 B. N. C. 220.
604 Actions BY THE CREDITOR AGAINST THE SHERIFF.

claim for costs. The latter attempt, which was sanctioned by the
court, in Yea v. Lethbridge,’ was decided against in Paul v. Good-
luck.? The former point, however, was stillleft open. It was, how-
ever, afterward settled, that the object of the statute was only to
place the parties in the same position as if no replevin bond had
been executed. At common law the landlord had only his remedy
against the person who brought the action of replevin. The re-
plevin bond gave him the additional security of the sureties, and
the double costs. That was the whole effect the act could have had.
Consequently, if the rent was less than the value of the goods, the
object of the statute was satisfied by giving the amount of the rent
and the costs; otherwise the landlord would have been getting more
than the rent due. If the amount of the rent exceeded the goods,
then the landlord was entitled to the value of the goods, with the
costs, as before; otherwise, his remedy against the sureties would
have been greater than it had been against the tenant.’ In the
former of the cases cited below, Parrsson, J., pointed out that
some of the authorities relied on as opposing this view, really were
[408] not *against it, as they did not state which, the rent or the
goods, were greater in value. For instance, in Ward »v.
Henley,* where it was held that the rent in arrear and costs was the
measure of damages against the sureties, it does not appear that the
rent was not less than the distress. And in Scott v. Waithman,’
where Axzort, C. J., said, “ As the verdict in the replevin suit was
merely for a return of the goods, the jury could not in their verdict
exceed the value of the goods,” it does not appear whether the goods
were greater or less in value than the rent.
In no case could either sureties or sheriff be liable for rent which
accrued after the distress.’

Sec. 636. Damages against sheriff.

The rules thus settled equally applied where the action was against
the sheriff for not having taken a bond at all, or an invalid one, or
one with insufficient sureties.. In such a case the rent due, and the
expenses of the distress, were held to be a proper amount of dam-

14T, R. 4383, 41 Y. &J. 285.

* 2 Bing. N. C. 220. °3 Stark. 168.

* Hunt v. Round, 2 Dowl.558; Miers * Ward v. Henley, 1 Y. & J. 285.
v. Lockwood, 9 id. 975.
AoTions BY THE CREDITOR AGAINST THE SHERIFF, 605

ages! In that case it would appear that the value of the goods
was greater than the amount of the rent; and that no proceedings
in replevin had been carried on, so as to raise a claim for costs.
The costs of proceedings against the sureties might be recovered
against the sheriff in this form of action, even though no notice of
the intention to proceed against them had been given him; provided
such costs did not, together with other claims, exceed the penalty.’
In Baker v. Garrett, the court seemed to think, that if due notice of
the intention to sue had been given, such costs might be recoverable,
even beyond the penalty; because the sheriff might have prevented
the expense by paying all he was liable to pay under the sureties’
bond. They distinguished such a case of expenses, wholly in-
curred through his default, from that of costs of replevin suit,
for which he was not liable to a greater amount than the penalty ;°
because the legislature presumed that these would be covered by
double the value of the goods, and the amount so incurred was not
within bis control.

Sec. 637. When bond is lost.

*On the same principle, where the sheriff had lost the
replevin bond, he was liable in an action on the case at the
suit of the defendant in replevin, to the amount of damage to which
the sureties would have been liable, or to the amount of the penalty
of the bond, whichever was less.‘

[*409]

Sec. 638. Damages for breach of other duties.

The principle, that where the sheriff has been in fault, the plain-
tiff is entitled to be placed in the same position by means of damages,
as if the defendant had done his duty, is maintained in numerous
other cases; for instance, in actions for delay in executing a writ of
arrest ;° in selling under a fi. fa.;*° in returning the writ;’ for a
false return ;* for not levying.’ In all these the damages are meas-
ured not by the amount of the debt, but by the amount which could
‘or would have been recovered, if the breach of duty had not taken

| Edmonds », Challis, 7 C. B. 413. 6 Aireton v. Davis, 9 Bing. 740;

2 Baker vo. Garratt, 3 Bing. 56; Bales. Wingfield, 4Q. B. 580, n.
Plumer v. Brisco, 11 Q. B. 46. TR. v, Sheriff of Essex, 1 M. &W. 720.

* Evans v. Brander, 2 H. Bl. 547. 8 Crowder v. Long, 8B. & C. 598;

‘Perreau v. Bevan, 5 B.& C. 284. Heenan». Evans, 3 M. & Gr. 398.

5 Clifton », Hooper, 6 Q. B. 468. * Augustien 2. Challis, 1 Ex. 279;

Mullet ». Challis, 16 Q. B. 289.
606 Actions BY THE OREDITOR AGAINST THE SHERIFF.

place! And if the sheriff return nulla bona to a writ of fi. fa.,
and the creditor knows of goods belonging to his debtor, he need
not sue forth a second writ of jf. fa., but may, in an action for a
false return, recover the value of the goods which the sheriff ought
to have taken.”

Sec. 639. Whenit is necessary to prove actual damage.

There is a difference to be observed in these actions, viz., that in
those, the whole gist of which is pecuniary damage, some such dam-
age must be proved, or the action will fail. But in others, there is
an injury toa right, even independent of actual loss; and the fact
of loss being negatived, merely makes the damages nominal. Thus
in an action for a false return ;° for not arresting on mesne process; *
or for *permitting a debtor arrested on mesne process to
escape ;’ a plea negativing any damage is good as a bar, and
proof of absence of loss entitles the defendant to a verdict.’ In all
these cases, the truth of the return, or the detention of the debtor,
is only of importance to the plaintiff as contributing to some ulterior
result. If no such result could have been produced, or has been
affected by it, there is no ground of action. But the case of an
escape. on final process is different. The creditor, “when he is
ascertained to be such by a judgment, and he has charged the
debtor, has a right to the body of his debtor every hour till the
debt is paid.”” This is itself the end, not the means. Conse-
quently, a right of action for nominal damages arises on any
escape, for however short a time, even though no pecuniary

[*410]

1 And all the probabilities of the
case must be looked at, as for exam-
ple, whether or not, if the execution
had been levied, the plaintiff would
have got any benefit from it, the other
creditors of the execution debtor hav-
ing been in a position to make him
bankrupt. Hobson v. Thellusson, 8 B.
& 8. 476; L. R., 2 Q.B. 642; 36 L. J.
Q. B. 302.

* Per Cur. Arden v. Goodacre, 11 C.
B. 877; 20 L. J.C. P. 184. Prima
facie, the measure of damage is the
value of the goods which might have
been ‘and were not levied. Hobson 2.
Thellusson, supra.

3 Wylie v. Birch, 4 Q. B. 566; Levy
v. Hale, 29 L. J. C. P. 127; Stimson 2,

Farnham, L. R., 7 Q. B. 175; 41 L. J.
Q. B. 52.

‘ Curling v. Evans, 2M. & G. 849.

5 Williams v. Mostyn, 4 M. & W.
145 ; Lewis v. Morland, 2 B. & Ald. 56-
64; Planck v. Anderson, 5 T. R. 37;
oe Barker v. Green, 2 Bing.
317.

® So where the action was against
the sheriff for selling the reversionary
interest of the plaintiff in goods in
the possession of an execution debtor.
Tancred », Allgood, 4 H. & N. 488; 28
L, J. Ex. 362. See, also, Lancashire
Waggon Co. v, Fitz Hugh, 6 H. &N.
502; 30 L. J. Ex. 281.

" Per Butuer, J., Planck 0. Ander-
son, 5 T, R, 40,
Actions BY THE CREDITOR AGAINST THE SHERIFF. 607

damage arises ;' or on any delay in arresting him.’ It would ap-
pear in all cases in which damage is necessary to maintain the
action, that proof of the breach of duty will lay upon the de-
fendant the onus of showing that no damage ensued ; but to entitle
plaintiff to substantial damage, specific evidence of loss must be
given.”

Sec. 640. Arrest on mesne process.

Cases of actions for escape after arrest on mesne process, or neg-
lect to execute such arrest, became of rare occurrence after arrest on
mesne process was almost done away with by 1 and 2 Vict., ch. 110,
§ 3. It is now abolished by the debtors’ act, 1869, 32 and 33 Vict.,
ch. 62, § 6. But analogous actions may still arise, for it would
seem that an action will lie against the sheriff for disobeying an
order for arrest made by a judge under this last act. Such orders
may be made under certain circumstances before final judgment
where the defendant is about to quit England, the arrest being for
a period *not exceeding six months, terminable on the de-
fendant’s giving security, in ordinary actions, that he will
not go out of England without the leave of the court, in penal
actions, that the sum recovered in the action shall be paid or the
defendant rendered to prison.*

[*411]

Sec. 641. Arrest on final process.

Arrest on final process is also abolished, except in a few specified
cases; and if those excepted cases still give rise to actions for not
arresting or for escape, the calculation of damages will be compli-
cated by the consideration that the imprisonment could in no case
be for a longer period than a year.’ Under § 5, in some cases
judgment debtors may be committed to prison for periods not
exceeding six weeks or until payment of the sum due. It will be
difficult for a jury to estimate satisfactorily in such cases the value
of the custody of the debtor.

1 Williams 2. Mostyn, 4 M. & W. 4 See Roscoe’s Nisi Prius, 1118, 12th
ee clifton 2. Hooper, 6 Q. B. 468. os 88 & 88 Vict., ch. 62, §5. The
3 Bales v. Wingfield, 4 Q. B. 580, judge’s orders are carried into effect

n.; Wylie v. Birch, id. 566, 578; Scott by, the sheriff; R. G. M. T. 1869.
®, Henley, 1 M. & Rob. 227. 68, 4,
608 Actions BY THE CREDITOR AGAINST THE SHERIFF.

Sec. 642. Actions for escape. Must be in case. Measure of damages.

Formerly by statute Westminster 2,! and 1 Rich. II, ch. 12, an
action of debt could be maintained against the sheriff upon an
escape, to recover the sum for which the debtor had been charged
in execution, and upon this action the creditor could not recover less
than the whole sum due, and the costs of the execution.” This
action, however, has been taken away by 5 and 6 Vict., ch. 98, § 31,
and the creditor is left to his old remedy at common law by action on
the case for damages. In a recent case the law as to the assessment of
damage was laid down by the court of Common Bench as follows:
“The true measure of damage is the value of the custody of the
debtor at the time of the escape, and no deduction ought to be made
on account of any thing which the plaintiff might have obtained by
diligence after the escape. If the execution debtor had not the
means of satisfying the judgment at the moment of the escape, the
plaintiff will have lost only the security of the debtor’s body, and
the damages may be small. If the execution debtor had the means
of satisfying the judgment at the moment of the escape, and has
wasted those means since the escape, it is plain that the plaintiff has
lost the chance of obtaining satisfaction of his judgment through
[#412] *the sheriff’s neglect, and the jury would be justified in giv-

ing the full amount of the execution. Where the execution
debtor has the means of paying the debt at the moment of the
escape, and still continues notoriously in solvent circumstances, the
value of the custody would be the amount of the debt, and the
plaintiff would be entitled to recover substantial damages. If the
laches of the plaintiff could be used to mitigate the damages against
the sheriff, the plaintiff would be compelled, in every case, to issue
a fresh writ, and incur expense to relieve himself to some extent
from the consequence of the sheriff’s negligence; but if such were
the plaintiff's duty, we should find some trace of the sheriff's lia-
bility to repay such expenses where the debtor was not recaptured
upon the second writ, and the plaintiff's exertions were unavailing
to realize the amount of his judgment. There may, however, be
circumstances under which the plaintiff's conduct would materially
affect the damages. For instance, if he has done any thing to

113 Ea. 1, c¢. 11. * Bonafous v. Walker, 2 T. R. 126;
Hawkins v. Plomer, 2 W. Bl. 1048,
AcTIons BY THE CREDITOR AGAINST THE SHERIFF. 609

aggravate the loss occasioned by the sheriff's neglect or has pre-
vented the sheriff from retaking the debtor.'

Sec. 643. Action for amount levied.

Of course an action will lie by the creditor against the sheriff to
recover the money levied by him under an execution, and the dama-
ges will be the whole amount so levied. But where the action has
been commenced without a demand of the sum, the court will stay
proceedings upon payment of the amount without costs.’

Sec. 644. Actions by the debtor.

Actions against the sheriff by the debtor or his representatives
are generally for a seizure of his goods or person under illegal cir-
cumstances, or for an improper treatment of the property so taken.
So far as these actions differ from similar proceedings ‘against
any other wrong-doer, they have been treated of in a previous
chapter.*

Sec. 645. Extortion.

Another species of wrong, viz., extortion by exacting too
*large fees, has been provided for by statute; 29 Eliz., ch. 4, [#413]
§ 1, enacts, that if the sheriff or his officers extort more than
the poundage fees allowed by that act, they shall lose and forfeit to
the party grieved his treble damages. This means three times the
full amount found by the jury.‘ This statute is not repealed by 1
Vict., ch. 55, which permits the sheriffs to take certain additional
fees, if previously sanctioned by the judges, and makes the officer
exacting more punishable as fora contempt. The effect of the latter
act is to exempt the taking of the fees allowed by the judges under
it from the operation of the penal clause in the statute of Eliz.,
leaving that statute in other respects in full operation. Conse-
quently all that is taken by the sheriff or his officer beyond what is
warranted by the exemption given by the statute of Vict., is, if it

1 Arden v. Goodacre, 11 C. B. 371; that the debt would have been dis-
20 L. J. C. P. 184. So, Moore v. charged. Macrae o. Clarke, L. R.,'1
Moore, 25 Beav. 8; 27 L. J. Ch. 885; C. P. 403; 85 L. J.C. P. 247,
Hemming ». Hale, 7 C. B. (N. 8.) 487;  ? Jefferies », Sheppard, 3 B. & A.
29 L. J. C. P. 187. Not only the 696.
debtor’s own resources are to be con- ® Ante, p. 522.
sidered, but all reasonable probabili- 4 Buckle v, Bewes, 4 B, & C. 154,
ties, founded on his position in life,

17
610 ACTIONS BY THE CREDITOR AGAINST THE .SHERIFF.

amounts to more than the poundage, an excess under the statute of
Eliz., and renders the officer taking such excess liable to an action
for the penalty given by that statute.

Sec. 646, Form of declaration.

The declaration should show how much was taken lawfully, and
how much unlawfully, stating the excess on each fee.” But where
the illegality consists in exacting poundage where no levy at all was
made, it is not necessary to negative all the acts which would have
constituted a levy.*

Sec. 647. Only taxed costs recoverable.

Where the misconduct of the sheriff has forced the party injured
to take legal proceedings, only the taxed costs of such proceedings
can be recovered back from him, and not the extra costs paid to the
plaintiff's attorney.‘

1 Per Cur. Wrightup v. Greenacre, ? Usher v. Walters, 4 Q. B. 553;
10 Q. B. 1; Pilkington ». Cooke, 16 Berton v. Lawrence, 5 Ex. 816.

M. & W. 615. > Holmes v. Sparkes, 12 C. B. 242.
4 Jenkins v. Biddulph, 4 Bing. 160.
AoTIons AGAINST ATTORNEYS AND WITNESSES. 611

CHAPTER XXXI.
ACTIONS AGAINST ATTORNEYS AND WITNESSES.

Src. 648.
649,
650.
651,
652.
653.
654.
655.

Actions against attorneys for negligence.

Where record is withdrawn.

When cause is taken as undefended.

Actions against witnesses.

Procedure in case of absence of witness.

Damages in an action are the costs of withdrawing the record.
Plaintiff must prove damage.

Action for penalty.

Sec. 648. Actions against attorneys for negligence.

Damages in actions against attorneys for neglect of their duty are
governed by exactly the same principles as those laid down in the
case of sheriffs. The plaintiff is entitled to be placed in the same
position as if the attorney had done his duty. But he is entitled to
no more. Therefore where no diligence could have been effectual,
as where the client had no ground of action or defense, the attorney
cannot be liable for negligence, unless it has caused loss independent
of the *necessary result of the suit, or other proceeding.’ It [#414]
lies upon the defendant, however, to establish this defense
affirmatively, and the fact that the plaintiff has suffered no actual
injury is no bar to the action, if otherwise maintainable. He is still
entitled to nominal damages.’ The amount of damages is a question
for the jury,’ and depends upon the amount of loss which the
plaintiff has suffered,* or is likely to suffer from the act, taking all
the circumstances of the case into consideration. The latter part is
clear from the case of Howell v. Young,’ which decides that the

1 Lee v. Ayrton, Peake, 119; Aitche-
son v. Maddock, Pea. 162; Harrington
», Binns, 3F. & F. 942.

4 Godefroy v. Jay, 7 Bing. 413. So
where the attorney compromises a suit
against the express instructions of his
client, though the compromise be for
the client’s benefit, at least nominal
damages maybe recovered. by the cli-
ent in an action against the attorney;

Fray v. Voules, 1 HE. & E. 839; 28 L.
J. Q. B. 232, And see Butler v. Knight,
L. R., 2 Bx. 109; 36 L. J. Ex. 66,

> Russell v, Palmer, 2 Wils. 825;
Pitt v. Yalden, 4 Burr. 2061.

4 Stannard v. Ullithorne, 10 Bing,
491; Godefroy v. Jay, 7 id. 418; Bur-
don v. Webb, 2 Esp. 527.

55 B.& C. 259, 266.
612 AcTIONS AGAINST ATTORNEYS AND WITNESSES.

statute of limitations runs from the act of negligence, not from the
time that an injury accrues; such injury is merely consequential
damage, not a fresh cause of action; the damages then in the origi-
nal action must cover all the loss that can ever arise, because no such
loss can afterward be compensated. Where the action was for neg.
ligence in not procuring the release of the plaintiff, an imprisoned
debtor, under 48 Geo. ITI, ch. 123, by reason of which he was
detained in prison from the 11th of January till the 19th of March,
when he was discharged by consent of the detaining creditor; the
jury were told that in estimating the damages they might take into
consideration that, as the plaintiff was finally released by consent, he
gained the advantage of having his goods no longer liable, which
they would have been if he had been discharged by the court, as he
had himself desired.1. With submission, however, it may be doubted
whether the latter circumstance could fairly be taken into considera-
tion. If it had been a necessary result of the defendant’s delay that
a prolonged period of imprisonment should, be followed by an abso-
lute discharge from all liability, then, in estimating the damages due
[415] for such *negligence, all its consequences would, of course, be

properly included. But in this case, the final release by con-
sent was in no way a result of the defendant’s act. If some friend,
compassionating the plaintiff on account of his continued imprison-
ment, had paid off the debt, surely this could not have been con-
sidered in assessing the damages. Yet it might have been equally
argued, that if the plaintiff had got out at the time and on the terms
which he had wished, the sympathies of his friend would never
have been excited in his favor.

Sec. 649. Where record is withdrawn.

Where, in consequence of the attorney’s negligence in not attend-
ing himself with the witnesses, the plaintiffs counsel is obliged to
withdraw the record, the attorney is, of course, liable to the expenses
so incurred.” And where a larger sum was given as damages, the
court considered them excessive, and ordered them to be reduced, or
a new trial granted.*

' Shilcock 0. Passman, 7C.& P. * See as to these, post, 613.
289-293. ®° Hawkins 7, Harwood, 4 Ex, 508.
Aortons acatnst ATTORNEYS AND WrtnussEs. 613

Sec. 650. When cause is taken as undefended.

Where, however, the attorney is acting for the defendant in a
cause, and through his negligence it is taken as undefended, and a
verdict goes against his client in consequence, the jury may of course
give as damages the whole value of the subject-matter of action.’
In such a case the court, in one instance, granted a new trial, and
ordered the defendant’s attorney to pay all costs out of his own
pocket as between attorney and client.’ But in similar cases the
court have since refused the indulgence.” Still in cases of very great
importance, as for instance relating to land, where the interests of
others would be bound by the verdict, the court would probably
even now grant a new trial on such terms.* If such an arrangement
had been made, it would seem that the damages ought to be nomi-
nal, or at least should only extend to the actual loss suffered by delay,
if any.

Sec. 651. Actions against witnesses.

Where a witness, who has received a proper subpcena, and who
has had his expenses tendered, fails to attend at the trial *the
eae : : : : _ [*416]
party summoning him has his choice of proceeding against him
by attachment, or by action on the case, or he may sue for the pen-
alty given by 5 Eliz., ch. 9,§12. With the former course we have
nothing to do. The two latter require a few words.

Sec. 652. Procedure in case of absence of witness.

The proper course for the party to take when an important wit-
ness is absent, is to withdraw the record if he be the plaintiff,* or
apply for a postponement of the trial if he be the defendant. This
leaves him his remedy against the witness, for it is now settled that
in order to maintain an action against the latter for non-attendance,
it is not necessary that the cause should have been called on, or the
jury sworn.’ It also saves him all risk which might result from a
trial on imperfect evidence. Consequently, any additional expense
or loss caused by going to trial will be his own fault, and not the
necessary result of the witness’s absence.

1 Hoby ». Built, 3 B. & Ad. 350. 3 Taunt. 91; Lowden »v. Hierons, 2

2 De Roufigny v. Peale, 3 Taunt. 484 Moore, 102.

3Gwilt o. Crawley, 8 Bing. 144; 5Leave is required for this now.
Watson v. Reeve, 5 B. N. C. 112. Ord. 23, Rule 1.

Nash v. Swinburn, 4 8co. N. R. 326, § Mullett ». Hunt, 1 C. & M. 752;
4Swinnerton v. Marquis of Stafford, Lamont v. Crook, 6 M. & W. 615.
,

614 Actions against ATTORNEYS AND WITNESSES.

Sec. 653. Damages in an action are the costs of withdrawing the record.

The damages in an action by the original plaintiff, who was
forced to withdraw the record, consist of the expense he was put to
in so doing, viz., the costs he incurred by going down to a fruitless
trial, and the costs he became liable to pay the opposite party in con-
sequence of the withdrawal of the record.1 The damages would be
just the same where the witness was the defendant’s, because he may
obtain a postponement of the trial, upon paying the costs which
the opposite party has been put to in preparing for trial, which are
the same as the costs of withdrawing the record.”

Sec. 654, Plaintiff must prove damage.

This action cannot be supported without evidence of some dam-
age resulting from the defendant’s neglect. Such damage cannot,
however, be negatived merely by showing that the plaintiff had no
good cause of action. The defendant’s evidence might have entitled
him to succeed in some particular issues, and the loss of costs upon
these is a sufficient injury, though he could not have succeeded
upon the whole record.*

Sec. 655. Action for penalty.

[417] *Statute 5 Eliz., ch. 9, § 12, enacts, that a witness making
; default after due process served, and tender of expenses, shall
forfeit 102., and yield such further recompense to the party grieved,
as by the discretion of the judge of the court, out of which the said
process issues, shall be awarded, according to the loss and hindrance
that the party shall sustain by reason of his non-appearance. These
damages must be assessed by. the court of Westminster, and not bya
jury, or judge at Nisi Prius, and an action will lie on the assessment.‘
An action will not lie against a witness for false or defamatory state-
ments concerning the plaintiff made in the due course of a judicial
proceeding, though they be made maliciously and without reason-
able and probable cause, and have caused damage to the plaintiff.°

1 Needham v. Fraser, 1 C. B. 815.

Yeatman v. Dempsey, 7 C. B. (N. 8.)
* Brown v. Murray,4 D. & R. 830; y

628; 29L. J. C. P. 177; affirmed, 9

Attorney-General v. Hull, 2 Dowl. P.
C. 111; Walker v. Lane, 3 id. 504,
*Couling v. Coxe, 6 C. B. 708, 719.
To justify substantial damages it is
not necessary to show that the wit-
ness’s testimony would to a certainty
have insured a successful result; a
probability of success is sufficient;

c. B. (N. 8.) 881.

4 Pearson v. Iles, 2 ee 561.

5 Revis 0. Smith, 25 L. J.C. P. 195;
18 C. B. 126; Seaman 2. Netherclift,
20, P. D. 53, 46 L. J.C. P. 128; and
see per Haru, C. J., Barber ». Lesiter,
20 L. J. 0.P. 165; 70.3, (N. 8.) 188,
Src. 656.
657.

658.

659.
660.
661.
662.

663.
664.
665.
666.
667.
668.
669.
670.
671.
672.
673.
674.
675.

DeEFAMATION. 615

CHAPTER XXXIL

DEFAMATION.

Defamation. Evidence of malice; other slander.

Persisting in the charge.

General evidence of character to prove malice.

Evidence of the circulation of the libel.

When evidence of malice is inadmissible.

Joint actions.

Substantial damages may be given without proof of actual
injury.

Future damage.

Evidence of specific injury after action brought. -

Proof of general injury.

Special damage must be laid.

Special damage must be the result of defendant’s own acts.

When the act of a third party will be good special damage.

Where damage is the natural result of the slander.

Special damage too remote.

Evidence in mitigation of damage.

That he had received previous provocation.

General bad character.

Evidence of truth of libel.

Former recovery against a third party. Apology for libel in news-

paper.

Sec. 656. Defamation. Evvidence of malice; other slander.

Damages in this action are so entirely at the discretion of the jury
that no rule as to their amount can be laid down. Some principles,
however, may be stated as to the nature of the evidence which may
be used, and the object to which it may be applied.

One of the principal elements in estimating the damages is the
malice of the defendant, and much difficulty often arises with regard
to evidence of subsequent words or writings adduced in proof of

this.}

1 Malice is the gist of an action for ant shall be held responsible for words
slander; and the speaking of actiona- spoken, in the sense in which he used
ble words is evidence of malice, The them. If the meaning be doubtful,
weight of authority is, that the defend- other parts of the same conversation
616

DeraMation.

It has been long established that other words or writings, not the
subject of the present action, might be given in evidence to explain
either the meaning or motive of the defamatory matter on which

may explain it, and do away the mali-
cious intent, but if there be no such
explanatory conversation, the law will
infer malice from their speaking. A
defendant, in an action for slander,
has a right to explain the meaning of
the words used by him, and rebut the
presumption of malice, if his explana-
tion is by reference to matters occur-
ring when the words were spoken, so
that those hearing them ought to have
understood them as explained. McKee
v. Ingalls, 4 Scam. (l.) 30. The law
implies malice from the speaking of
words actionable per se; Hosley ».
Brooks, 20 Ill. 116; Pennington 2.
Meeks, 46 Mo. 217; Littlejohn o. Gree-
ley, 13 Abb. Pr. (N.Y.) 55; Fry o.
Bennett, 5 Sandf. (N.Y. Super. Ct.) 54;
28 N. Y. 328; Jarnigan v. Fleming,
43 Miss. 710; 5 Am. Rep. 514; Howard
vy. Sexton, 4 N. Y. 161; Dale a. Harris,
109 Mass. 193; Gassett o. Gilbert, 6
Gray (Mass.), 94; Brow v. Hathaway,
18 Allen (Mass.), 239; Zuckerman v.
Sonenschien, 62 Ill. 115; and except
in the case of privileged communica-
tions, no other proof than the speak-
ing of the words is required. Bush 2.
Prosser, 11 N. Y. 357; Thorn ». Moser,
1 Denio (N. Y.), 488; Howard 2.
Sexton, ante; Dale v. Harris, ante ;
but proof of express malice may be
given by the plaintiff in aggravation
of damages. Bush v. Prosser, ante ;
Taylor v, Church, 8 N. Y. 452; Viele
o. Gray, 10 Abb. Pr. (N. Y.) 6.
Malice, in its ordinary sense, implies
personal ill-will, but in a legal sense,
when used as a legal term, it does not
necessarily have that significance, but
rather signifies an act done with an
evil intention, a wrongful motive,
willfully, unlawfully, and against the
just rights of another. Barxey, J.,
in Brommage ». Prosser, 4 B. & C.
247, gave, what seems to be the most
accurate definition of the word, when
used as a legal term. He said:
‘‘Malice, in common _acceptation,
means ill-will against a person, but in
its legal sense it means a wrongful act
done intentionally, without just cause
or excuse.” And he proceeds to illus-

trate the matter thus: “If I give a
perfect stranger a blow likely to cause
death, I do it of malice, because I do
it intentionally without just cause or
excuse. If I maim cattle, without
knowing whose they are; if I poison
a fishery without knowing who is the
owner, I do it of malice, because it is
a wrongful act and done intentionally.
If I am arraigned of felony, and will-
fully stand mute, I am said to do it of
malice, because it is intentional and
without just cause or excuse.” And
generally, it may be said that malice is
always inferred in all cases, criminal
or civil, where an unlawful act is done
for which no legal excuse is shown.
Com. ». York, 9 Metc. (Mass.) 104;
Com. v. Bonner, id. 410. There-
fore, where there is an apparent legal
excuse, if malice is of the gist of the
action, it must be shown, but where
there is no legal excuse, it is inferred;
and, even though there is not malice
in fact, yet there is malice in law,
which will sustain the action. Hart
v. Reed, 1 B. Monr. (Ky.) 166.

In actions for words written or
spoken that are not actionable per se,
but only become so by reason of their
imputing something that affects the
plaintiff in his trade, calling or pro-
fession, the declaration or complaint
must set forth particularly in what
manner it was connected by the
speaker with that trade, calling or
profession, and the special damage re-
sulting therefrom; and unless the
words clearly import such an applica-
tion, or are shown to have been so
used, an action will not lie. Ayre 2.
Craven, 2 Ad. & El. 8. It is libel-
ous to write of a person soliciting re-
lief from a charitable society that she
prefers unworthy claims which it is
hoped the members will reject, and
that she has squandered away money
already obtained by her from the be-
nevolent in printing circulars, abusive
of the society’s secretary, or that her
friends in giving up their advocacy of
her, had stated that they had realized
the fable of the ‘Frozen Snake,”
such words being generally understood
DEFAMATION.

the action was founded.!

617

And that whether the publications, etc.,

offered in evidence were before those complained of,’ or after issue
joined in the action ;* and even though the writing or publication is

as meaning ingratitude to friends.
Hoare v. Silverlock, 12 Ad. & El. (Q.
B.) 624. Proof of good intent, or
want of malice, cannot be given in
mitigation. If the party had no legal
justification for the slanderous charge,
he must abide the consequences of his
folly in uttering it, for the very foun-
dation upon which the legal pre-
sumption of malice is predicated, is
the absence of a legal or justifiable
excuse. If a legal excuse is prima
Jacie made out, it removes the effect
of the legal presumption, and the
plaintiff then becomes charged with the
burden of proving malice in fact. But
except in the instance named, the
defendant cannot introduce evidence
to rebut the presumption of malice,
and even when admissible, the pre-
sumption is not overcome, except
when the justification is as broad as
the charge itself. Malice, in its legal
sense, does not imply personal enmity,
nor personal ill-will, but a wrongful
act purposely done. Therefore, the
fact that the plaintiff himself had
been guilty of misconduct that in-
duced a belief in the defendant’s
mind of the truth of the charge, is not
admissible in evidence, unless the
words were spoken in the discharge of
a real or supposed duty. Thus, where
a person took the property of another
in jest, with the intention of returning
the same, the owner of the property is
not justified in saying that he stole the
property, even though he believed
such statement to be true. He can

only justify the speaking of the words ‘

by proving their truth, which involves
proof that the property was feloniously
taken. Clark v. Brown, 116 Mass,
504; Porter v. Botkins, 59 Penn. St.

484. But contra, see Hudson 2, Dale,’

19 Mich. 17, where it was held that

1 Simpson v. Robinson, 12 Q. B. 511;
Plunkett ». Cobbett, 5 Esp. 136;
Camfield 0. Bird, 3 C. & K. 56.

? Barrett v. Long, 3 H. L. Ca, 395.

® Macleod v. Wakley, 3 C. & P. 311.
If there has been aconsiderable inter-

78

such circumstances were admissible to
disprove malice, but not as a defense.

In Watson et ux. v. Moore, 2 Cush,
(Mass.) 183, the defendant offered to
show suspicious acts of the plaintiff,
and suspicious circumstances which
induced an honest belief in his mind
that the charge was true. But the
court held that such evidence was not
admissible, because it neither tended
to justify or mitigate the offense. That
the defendant was bound to prove the
truth of his charge, or bear the conse-
quences, Mircue.u, J., in a very
carefully written and excellently con-
sidered opinion, reviewed the cases
as well as the principles bearing upon
this question, and among other things
said, ‘‘The evidence offered by the
defendant to show that he believed
the charge made by him was true, was
rightly excluded. He did not offer
this evidence for the purpose of prov-
ing that the words spoken by him
were true; nor did he show, or offer
to show that he spoke the words on
any lawful occasion, or in the per-
formance of any real or supposed
duty, as was the case in Bradley 2.
Heath, 12 Pick. (Mass.) 163. He
merely offered to prove ‘‘with a view
to rebut the presumption or evidence
of malice and in mitigation of dam-
ages,” circumstances which excited
his suspicion and furnished reasonable
cause for his belief that the female
plaintiff had stolen his beds. Such
evidence has been held to be admis-
sible in some of the States. See 2
Greenleaf on Evidence, § 275; Rigden
». Wolcott, 6 G. & J. (Md.) 413; Wil-
liams v. Miner, 18 Conn. 464.

In the courts of other States the
contrary has been held, and we con-
sider jt as settled in this common-
wealth that such evidence is inadmis-

val, the jury should be directed
to consider whether the subsequent
expressions might not have referred
to something which had happened
after the libel; Hemmings », Gasson,
E..B. & E. 346; 27 L. J. Q. B. 252.
618

[*418]

sible, Alderman 2. French, 1 Pick.
(Mass.) 1; Bodwell v. Swan, 3 id. 376;
Hix ». Drury, 5 id. 296; Brickett o.
Davis, 21 id.404. But if this were
res integra we should have no hesita-
tion in rejecting the evidence which
the defendant offered atthe trial. It
had no tendency to disprove the malice
of the defendant. For malice, in its
legal sense, is not personal enmity. A
wrongful act purposely done is all
that is necessary to be shown in proof
of malice. Bromage ». Prosser, 4 B.
& ©. 255; Com. ». Bonner, 9 Metc.
(Mass.) 410. Nor has the evidence in
our judgment any tendency to miti-
gate the damages. The damages in
an action of slander are to be meas-
ured by the injury caused by the
words spoken, and not by the moral
culpability of the speaker. The gen-
eral character of the plaintiff may be
shown to be bad; for this shows that
his injury is small. But reports and
rumors unfavorable to his character
cannot be given in evidence for the
purpose of reducing damages. Bod-
well o. Swan, 3 Pick. (Mass.) 376;
Stone v. Varney, 7 Metc. (Mass.) 86. A
fortiort evidence of the defendant’s
suspicions, however excited, cannot
be received for such purpose.”

Where an action is brought against
a party for slander, and it is shown

' Delegall ». Highley, 8 C. & P. 444.

*Finnerty 0. Tipper, 2 Camp. 72.
Evidence of a repetition of the slan-
der by the defendant is admissible to
prove malice, but not to enhance the
damages. Trabue v. Mays, 8 Dana
(Ky.), 188; Parke » Blackiston, 3
Harr. (Del.) 873; McKee v. Ingalls, 5
Til. 80; Beardsley v. Brigham, 17 Iowa,
290; McAlmont v. McClelland, 14 8. &
R. (Penn) 359; Scott v. Mortsinger, 2
Blackf. (Ind.) 454; Parmer v. Ander-
son, 33 Ala. 78; Thompson 2. Bowers,
1 Doug. (Mich.) 321; Baldwin ». Soule,
6 Gray (Mass.) 321; Smith v, Wyman,
16 Me. 18; Duvall ». Griffith, 2H. &
G. (Md.) 80: Symonds 2. Carter, 32.N.
H. 458; Adkins v. Williams, 23 Ga.
222.

DerraMatTIon.

*itself the subject of a distinct count in the same action.
But it has been held that such evidence must be in some way
connected with the libel in question.’

It may be doubted, however,

that the defendant had good cause for
using the language which is alleged
to be slanderous, the presumption that
the words were maliciously spoken is
not to be taken, and additional evi-
dence will be necessary to sustain the
charge. And if the communications
are privileged, malice isnot presumed,
and it devolves upon the plaintiff to
show that the defendant was influ-
enced by motives outside of the dis-
charge of his duty. If the circum-
stances under which the slanderous
words are spdken prima facie show
the communication privileged, the
fact that they are proven to be false
does not raise the presumption of mal-
ice. Ormsby v. Douglass, 37 N. Y. 477;
8. C.,5 Trans. App. 100.

If the publications complained of
are privileged communications, extrin-
sic proof of malice is essential to the
plaintiff's recovery, and, if not privi-
leged, proof of express malice is com-
petent for the purpose of enhancing
the damages. Fry v. Bennett, 28 N.
Y. 324. But it has been held that
evidence is admissible in mitigation
that tends to prove the truth of the
charge, but falls short of it. Snyder
v. Andrews, 6 Barb. (N. Y.) 43. See,
also, Bisbey ». Shaw, 12 N. Y. 67;
Scott 0. McKinnish, 15 Ala. 662. So
also it has been held that evidence is

The rule is that evidence of the
repetition of the words laid in the de-
claration, at other times than those
charged, as well as of the speaking
of other words, if spoken so near the
time of the words declared upon, or
otherwise so connected with them as to
have a legitimate bearing upon the dis-
position of the defendant’s mind at the
time of uttering the slander complained
of, is admissible to show the malice of
the defendant, and it is immaterial
whether the other words proved are
themselves actionable or not. Sever-
ance 2 Hilton, 82 N. H. 289; Sy-
monds ». Carter, id. 458; Stearns 2.
Cox, 17 Ohio, 590; Elliott ». Boyles, 31
Penn. St. 65; Miller 0. Kerr, 2 McCord
(S. C.), 285; Bartow 0. Brands, 15 N.
DeramatIon.

619

whether this distinction is a very reasonable one. If the object of
the evidence is to prove malice by showing the feelings with which
the defendant was actuated toward the plaintiff, this would be

admissible to rebut the presumption
of malice, that tends to show that the
defendant acted honestly although
mistakenly where the grounds of sus-
picion were strong. Moseley v. Moss, 6
Gratt. (Va.) 584; Chapman 2. Calder,
14 Penn. St, 365; Kennedy v. Dear, 6
Port. 90; Hart v. Reed, 1 B. Monr.
(Ky.) 166. But even in those States
where this is permitted the evidence
only goes in mitigation of damages,
and not in bar of the action. The
question is one of no little difficulty
for the courts,and one in which, unless
great care is exercised, judicial judg-
ment is liable to be warped by sympa-
thy, in individual cases. The true
rule, most in conformity with princi-
ple, and best calculated to protect the
rights of parties, and most salutary in
its effect upon society, would seem to
be, that grounds of suspicion are not
admissible for any purpose, unless the
plaintiff by his own misconduct has
rendered himself obnoxious to the
charge,and that in such cases evidence
of bona fide suspicion of the truth of
the charge should go in mitigation.
Under this rule, the evidence rejected
in Clark v. Brown, ante, would have
been admissible, and in analogy to the
rule that evidence of general bad char-
acter may be received in mitigation of
damages, there would seem to be no

J. L. 248; Brittain v. Allen, 2 Dev.
(N. C.) L. 120; Howell o. Cheatham,
Cooke (Tenn.), 247.

Action of slander, evidence of
words spoken, some days before those
charged in the declarations as slander-
ous, is admissible to show quo animo
the latter were spoken. Adkins ».
Williams, 23 Ga. 222; but evidence
cannot be given of words spoken on
another occasion of a different import
from those charged in the declaration,
although such evidence is offered only
for the purpose of showing that the
words charged were spoken with a
malicious intent. Howard v. Sexton, 4
N. Y. (4 Comst.) 157; Taylor v. Knee-
land, 1 Doug]. (Mich.) 67; nor so re-
mote from the time of the speaking

good reason why the plaintiff’s recov-
ery should not be limited to such a
sim as he ought to have, in view of
his own misconduct, inducing the
charge. But equitable as this rule
may seem to be, and as salutary in
its results as it might at first thought
appear, it is nevertheless fraught with
numerous objections and serious dan-
gers. It raises new issues and creates
uncertainties in the trial of causes,and
places the plaintiff in the position of
being compelled to explain conduct
perfectly innocent in itself, but which
to those not understanding the motive
or purpose of his action, may appear
improper and suspicious. A person
accidentally and against his will may
be and often is placed in a position
calculated to excite suspicion and dis-
trust, and which his individual ex-
planation may prove powerless to dis-
pel,and which is perhaps only dispelled
by some accident. To allow persons
who find food for gossip in trivial
matters, with impunity to open up the
flood gates of scandal on mere suspi-
cion, would place reputation at the
mercy of such vultures, and no man’s
good name would be safe from their
attacks. There can be no hardship in
holding a person, who sees fit to tra-
duce the character of another by the
publication. of slanderous matter, up

complained of as to have no bearing
upon the quo animo. Thus, in an action
in which the pleas were ‘‘ not guilty,”
and ‘‘not guilty within one year,”
the plaintiff, after proving that the
words in the declaration mentioned
were spoken by the defendant within
a year prior to the institution of the
suit, offered evidence to prove the
speaking by the defendant of the same
and like words, more than a year be-
fore the suit was instituted, and, on
some occasions, several years prior
thereto. Held, that such evidence was
inadmissible for the purpose of show-
ing the defendant’s malice toward the
plaintiff. Lincoln ». Chrisman, 10
Leigh (Va.), 388.
620

DEFAMATION.

proved much more strongly by showing that he had seized a dozen
opportunities of maligning him on different subjects, than that he

had a dozen times repeated the

to the strict truth of the charge. Men
are not obliged to repeat slanders, and
they seldom or never originate from a
sense of duty, but rather from evil
motives or an inveterate love of gos-
sip. The protection afforded to such
pests in society is amply sufficient,
without opening up another easy ave-
nue for their escape from the penalties
properly incident to their vocation, by
permitting them to ‘‘ set loose” their
tongues upon simple suspicion.

The rule is that, in order to justify
the speaking of slanderous words, the
justification must be co-extensive with
the charge, and the fact that the de-
fendant believed it tobe true or had
probable cause for believing it to be
true, except in the case of privileged
communications, cannot operate in
any measure as an excuse, or in miti-
gation of the offense. A person must
not traduce the character of another
upon a bare suspicion, but must be
sure of the truth of the charge before
he makes it, or pay the price of his
temerity. Thus, in Parkhurst 2.
Ketchum, 6 Allen (Mass.), 406, the de-
fendant charged the plaintiff with
adultery, and the defendant sought to
justify the speaking of the words upon
the ground that the plaintiff, by her
conduct and conversation, and espe-
cially by her deportment and conver-
sation with one Whitney and certain
teamsters, had induced a belief of the
truth of the charge in his mind. The
court held that evidence of this char-
acter was inadmissible; in the lan-
guage of Mercatr, J., ‘‘either in
justification, or in mitigation of dam-
ages.” It has been held, however, in
some of the States, that belief in the
truth of a libelous charge might be
shown in mitigation; Huson 2. Dale,
19 Mich. 35; Wagner v. Holbrunner,
7 Gill (Md.), 296; but not in justifica-
tion, even though sustained by strong
suspicions. Moyer ». Pine, ‘4 Mich.
409. Malice need not be alleged in
the complaint; Viele v. Gray, ante; it
is enough that the charge is stated to
be false; Purdy v. Carpenter, 6 How.
Pr. (N. Y.) 369; and even though

original libel. Formerly it was

words equivalent to a charge of malice
are not set forth in the complaint, the
defect is cured by verdict. Taylor 2.
Kneeland, 1 Doug. 67.

Express malice may be proved by
slight evidence, as by the occasion
upon, and manner in which the words
were spoken; Fowles v. Bowen, 30 N.
Y. 20; Lathrop ». Hyde, 25 Wend.
(N. Y.) 448; Briggs v. Byrd, 12 Ired.
(N. C.) 377; Smith v. Youmans, Riley
(8. C.), 88; so by their repetition;
Titus ». Sumner, 44 N. Y. 266; Norris
». Elliott, 39 Cal. 72; McAlmont v. Mc-
Clelland, 14 8:.& R. (Penn.) 359; Rob-
bins v. Fletcher, 101 Mass. 115; Meyer
». Boblfing, 44 Ind. 238; Beardsley
v. Bridgman, 17 Iowa, 290; McLaugh-
lin ». Bascom, 38 id. 660; Burt 2.
McBain, 29 Mich. 260; and the defend-
ant cannot excuse himself by denying
malicious intent; Harwood v. Keeble,
6 T. & C. (WN. Y.) 668; Baldwin o.
Soule, 6 Gray (Mass.), 821; Schrimper
v2. Heilman, 24 Iowa, 505; Scott v.
Mortsinger, 2 Blackf. Ind.) 454; Bas-
sell», Elmore, 48 N. Y. 566; Flaming-
ham 7. Boucher, Wright (Ohio), 746;
Dillard ». Collins, 25 Gratt. (Va.) 343;
Botelar v. Bell, 1 Md. 173; Inman 2.
Foster, 8 Wend. (N. Y.) 602; Letton
». Young, 2 Metc. (Ky.) 558; nor by
proving other or different slanders;
Howard ». Sexton, 4 N. Y. 157;
Medaugh ». Wright, 27 Ind. 137;
Taylor v. Kneeland, 1 Doug. (Mich.)
67; unless the speaking of them is so
nearly connected with those charged
as to time, as to be so connected with
them as to have a legitimate tendency
to show the disposition of the defend-
ant’s mind at the time he uttered the
slander complained of; Severance 2.
Hilton, 32 N. H. 289; Symonds »v.
Carter, id, 458; Miller ». Kerr, 2

. McC, (S. C.) 285; Brittain o. Allen, 2

Dev. (N. C.) 120; Stearns ». Cox, 17
Ohio, 590; Elliott o. Boyles, 31 Penn.
St. 65; Bartow ». Brands, 15 N. J.
248; and the reiteration of the same
slander may be shown, even though
the statute of limitations would be a
bar to an action for such speaking;
Throgmorton ». Davis, 4 Blackf.
DeramarIon.

621

thought that no such evidence could be received when the words,
etc., so offered were themselves actionable.’ But this distinction was
early denied by Lords Kenyon and Exienzoroves,’ and has been

(Iind.) 174; Titus v. Sumner, ante ;
so of a similar slander, Litton 2.
Young, ante; Cavanaugh v. Austin,
42 Vt. 576; but words spoken after
suit brought are not admissible; How-
ell v. Cheatham, Cooke (Tenn.), 247.
It may be stated as a general prop-
osition, that the speaking of words
that may be the subject of a separate
action cannot be shown in evidence,
hence, words spoken after the action
is commenced are not admissible.
Rapatuo, J., in Frazier v. McCloskey,
60 N.Y. 338. See, also, Root »v.
Lowndes, 6 Hill (N. Y.), 520; Keen-
holts ». Becker, 3 Den. (N. Y.) 346;
Titus v. Sumner, 44 N. Y. 266; Inman
». Foster, 8 Wend. (N. Y.) 602;
Peterson ». Hutchinson, 30 Ind. 38;
but abusive utterances, not slander-
ous, made after action brought, are
admissible to prove. malice. Sonne-
born v. Bernstein, 49 Ala. 169. Where
words spoken are prima facie priv-
ileged, and therefore require proof
from the plaintiff of express malice,
‘the conduct of the defendant after
speaking the words may be given to
establish such malice; as that he
pleaded their truth in justification,
and then gave no evidence in support
of the plea, and refused to admit the
falsity of the words; Simpson v. Rob-
inson, 12 Ad. & El. (Q. B.) 511; over-
ruling Melen ». Andrews, M. & M.
336; and Wilson ». Robinson, 7 Ad.
& El. (Q..B.) 68; by showing the de-
fendant’s ill-will toward the plaintiff;
Morgan »v. Livingston, 2 Rich. (8. C.)
573; by the falsity of the words. In-
deed, in all cases where the defendant
claims the words to have been priv-
ileged, he is not required to prove the
truth of the words, but the plaintiff
must establish their falsity, unless the
privilege has been exceeded. Edwards
». Chandler, 14 Mich. 471; Fowles 2.
Bowen, 30 N. Y. 26. Express malice
may be shown, by proof that the im-
putation is false, and it*is sufficient to

1Mead v. Daubigny, Peake, 125;
Cook v. Field, 3 Esp. 183; Defries v.
Davis, 7C. & P. 113.

establish such malice, if it is proven
that a material part of the imputation
is false. Blagg v. Sturt, 10 Ad. & El.
(Q. B.) 899. See, also, Robinson ».
May, 2 Smith (English), 3, where it
was held that ‘‘absence of all ground
for the presentation is proof of express
malice.” In Blagg v. Start, ante, Lord
Denman said: ‘‘We are of opinion
that proof of falsehood, in a part of
the statement, is evidence for the jury,
to renew the presumption of malice,
where the occasion of the publication
has been given in evidence to rebut
it.” So, while for the sake of public
justice charges and communications
which would otherwise be slanderous
are protected if made bona fide, in
the prosecution of an inquiry into a
suspected crime, and are not made in
stronger language or before more per-
sons than is necessary; Toogood 2.
Spyring, 1 C. M. & R. 181; Lay».
Lawson, 4 Ad. & El. 795; Wright ».
Woodgate, 2C.M. & R. 578; Martin
v. Strong, 5 Ad. & El. 535; Fowler 2.
Homer, 3 Camp. 294; Kine ». Sewell,
3 M. & W. 297; Blake ». Pilfold, 1
Moo. & R. 198; Finden v. Westlake,
Moo. & M. 461; Bromage »v. Prosser,
4B. & C. 247; and it is for the jury
to say whether the charge was made
in an unwarranted and unreasonable
manner, or in an unfit place before
more persons than was necessary, or
in language too strong. Ravenga ».
Mackintosh, 2 B. & C. 693; Padmore
v. Lawrence, 11 Ad.& El. 382. Malice
is a question which must go to the
jury, but the question whether there
is reasonable and probable cause is a
question which may or may not be for
the jury, according to the particular
circumstances of the case. James 2.
Phelps, 11 Ad. & El. 488. But if
there are any facts in dispute, the ques-
tion must be submitted to the jury.
Blackford v. Dod, 2 B. & Ad. 184.
Lord TenTEerDEn, C. J., in discussing
the question in the case last cited, to

2Lee v. Huson, Peake, 166; Rustell
0. Macquister, 1 Camp. 49, n.
622

DeFAMATION.

finally overthrown.) So, too, it was once laid down that such evidence
was only admissible where the language complained of was ambigu-
ous; but where it was clear and undisputed, it was not so.’ But this

illustrate the rule adopted by him,
which was recognized by the court as
correct in James v. Phelps, ante, re-
ferred to the case of Ravenga vo. Mc-
Intosh, and said, “An attempt has
been made to draw a general rule from
this case, which is in its own circum-
stances very peculiar and specific.
There, it was clear from the plaintiff's
case, that the defendant had no de-
mand whatever upon the plaintiff, for
the sum for which he arrested him;
the defendant therefore prima facie
had no reasonable or probable cause
for making that arrest. But his de-
fense was that he acted honestly in
arresting, because he proceeded upon
the opinion given him by his legal
adviser, and to show that he gave in
evidence the opinion, founded on a
statement made by himself. Such a
defense necessarily introduced a ques-
tion of fact, whether he did act hon-
estly on the faith of the opinion which
he had obtained, believing that the
party might. lawfully be arrested.
That question was unavoidably left to
the jury.”

As to what constitutes reasonable
and probable cause, it was said in
Delegal v. Highley, 3 B. New Cas. 950,
that it ‘‘must be that which exists in
the minds of the party at the time of
the act in quéstion,” and this defi-
nition is referred to by CoLEeRtIDe:H, J.,
in James». Phelps, ante, with aproval.
This being the case, whenever there is
any dispute as to the facts, it becomes
necessarily a question of fact for the
jury to find, whether the defendant
acted reasonably, bona fide under the
circumstances, whether he honestly
believed in the truth of his charge,
and made it under that belief, and in
a reasonable manner in view of all the
facts and circumstances of the case.
A man may not, simply because he
honestly suspects another of having
committed a crime against himself, go
about the community proclaiming it,

1Pearson v. Lemaitre, 5 M. & Gr.
700,

publicly or privately, and claim ex-
emption from an action because of
such belief, however honest. His
privilege extends no further than to
such communications as are neces-
sarily and reasonably made in further-
ance of justice, to secure the- appre-
hension and conviction of the person.
For all that is said or done by him
beyond that, liability attaches. So it
has been held that putting a plea
upon the record asserting the truth of
the charge, and then putting in no
evidence to sustain it, may be con-
sidered as evidence of malice. War-
wick »v. Foulkes, 12 M. & W. 507.
See, also, Pearson v. Lematre, 5 M. &
G. 700; but in such a case if the plea
was honestly entered, and there is
otherwise an absence of any acts to
show malice on the part of the defend-
ant, and the communication is priv-
ileged, neither the éntry of such a
plea will be regarded as evidence of
malice, nor will the fact that the de-
fendant attempted to find testimony
to sustain his plea, but failed to do
so, be allowed to be shown in aggrava-
tion of the wrong; Ormsby v. Doug-
lass, 87 N. Y. 477; Freeman 0. Tins-
ley, 50 Ill. 497. Indeed, in Wilson 2.
Robinson, referred to ante, where such
evidence was held not proper to be
considered by the jury upon the ques-
tion of malice, the judgment of Lord
DrNnMaN was predicated upon the
ground, not that such evidence should
never be considered by the jury, but
that the fact whether it was proper to
be submitted to them depended en-
tirely upon the circumstances of the
case. If the communication is prima
facie privileged and a plea of justifica-
tion is entered in coed. faith, and it is
shown by evidence on the part of the
defendant that the occasion of the
communication was such as to make it
privileged, the mere fact that the
defendant had abandoned the plea of
justification would not of itself be

*Stuart o. Lovell, 2 Stark. 84;
Pearce v. Ormsby, 1M. & Rob. 455;
Symmons 2. Blake, id. 477.
DeraMaTION. 623

distinction, though quite just, if the only object of the evidence
were to explain the meaning of the libel, obviously fails when the
evidence is adduced to show the motives with which it was.pub-
lished. These may be quite independent of the meaning of the
libel, of which there may be no doubt. Accordingly, this distinc
tion, too, has been overruled by Pearson v. Lemaitre, where Trnpat,
CO. J., lays down the correct rule to be, “that either party may, with a
view to the damages, give evidence to prove or disprove the existence
of a malicious motive in the mind of the publisher of defamatory
matter, but if the evidence given for that purpose establishes another
cause of action, the jury should. be cautioned against giving any
damages in respect of it; and if such evidence is offered merely for
the purpose of obtaining damages for such subsequent injury, it

will be properly rejected.’

evidence of malice. Indeed, Lord
Denman expressly intimates that if
there is any evidence beyond the com-
munication itself to establish express
malice, the fact of the abandonment
of the plea might properly be consid-
ered in aggravation of damages, but
in that case there was no proof of
malice except it could be inferred
from the fact of the abandonment of
the plea, and the defendant expressly
proved that the document was privi-
leged, while in Simpson v. Robinson,
ante, the defendant not only aban-
doned his plea, but refused sto ac-
knowledge its falsity when the plain-
tiff offered to accept an apology and
nominal damages. Under such circum-
stances, the filing of the plea and its
abandonment was clearly evidence of
malice, and it was upon that ground
that the court predicated its judg-
ment. It did not hold that in all
cases the abandonment of the plea
was to be submitted to the jury as
per se evidence of malice, but that,
whenever the facts and circumstances
were such as torender its abandon-
ment evidence of express malice, it
might be considered by the jury in
determining that question. A com-

15M. &G.716. Omitting to give
this caution is not misdirection; Darby

munication imputing corruption in
office to one who fills the office cannot
be regarded as privileged, because it
relates to such person in his office,
and the party writing supposed he was
making it to a competent tribunal.
He is bound at his peril to know
whether it is made to such a tribunal,
and if it is not, it isnot privileged;
Blagg o. Stuart, 10 Q. B. 899; and this
is but a repetition of the doctrine laid
down in Weston v. Dobniet, Cro. Jac.
432, where the court held that words
spoken in the course of justice were
not actionable; but that, if a scandal-
ous bill is exhibited to a court that has
no jurisdiction over the subject-matter
of it, an action will lie. Ifa person
has spoken slanderous words - of
another, and being called on by the
person of whom the words were
spoken, in answer to an inquiry as to
whether he used the words, says that
he did, and that they are true, the
fact that the words were given in
response to an inquiry by the plaintiff
will not render them privileged, as to
that portion of them re-affirming the
slander. Griffiths v. Lewis, 7 Ad. &
El. (Q. B.) 61.

». Ouseley, 1H. &@N. 1; 25L. J. Ex,
227.
624 DEFAMATION.

Sec. 657. Persisting in the charge.

[419] *On the same principle the fact that the defendant has

,~ persisted in the accusation and refused to apologize, and that
he has put a plea of justification on the record, may be taken into
consideration as evidence of malice to heighten the damage.’ But
the latter circumstance cannot be used as evidence of express malice,
in answer to another plea raising the defense of'-a privileged com-
munication; though if that plea were found for the plaintiff, it
wonld be an aggravation of the damage.* Even where the publica-
tion is admitted on the pleadings, the plaintiff is entitled to show
the manner of it, with a view to damages.”

Sec. 658. General evidence of character to prove malice.

General evidence of good character cannot be. given in aggrava-
tion of damage, except to rebut evidence offered by the other side;
for till then the presumption of law is in the plaintiffs favor,
and the evidence would (in theory at all events) be without an
object.’

When the libel consists of an accusation imputing incompetency
in a particular transaction, evidence cannot be offered of general
competency on other occasions. This could only be admissible to
show malice, by disproving the charge. Buta person may have
shown himself quite incompetent on one occasion, and quite the
reverse on others.° The contrary rule prevails where the accusation
is as general as the evidence offered to rebut it. Accordingly where
the defendant had written of the plaintiff, who had acted as gov-
erness in the defendant’s family, “I parted with her on account of
her incompetency, and not being lady-like and good-tempered ;”
general evidence in contradiction of the statement was received.
Lord Denman said, “Malice may be established by various proofs ;
one may be that the statement is false to the knowledge of the
party making it.”°

1 Simpson v. Robinson, 12 Q. B. 511. ° Wilson ». Robinson, 7 Q. B. 68.
Even the language of counsel in court, * Vines ov. Serell, 7C. & P. 163.
if instructed to persist in the charge, * Cornwall 0. Richardson, Ry. & M.
may aggravate the damages; id., and 805; Guy v. Gregory, 9 C. & P. 587.
see Darby v. Ouseley, per PotLocg, C. 5 Brine v. Bazalgette, 3 Ex. 692.
B., 25 L. J. Ex. at pp. 230, 283; Risk — * Fountain v. Boodle, 3 Q. B. 5; so
Allah Bey », Whitehurst, 18 L.T. (N. Harrison o. Bush, 5 E. & B., at p. 863,

8.) 615, per Cocksurn, ©. J., at nist et seg.; 25L. J. Q. B. 99.
prius. Bs
DeraMaAtIon. 625

Sec. 659. Evidence of the circulation of the libel.

*Where it appears that many copies of a newspaper contain-
ing a libel have been put into circulation, this will be admissible
to aggravate the damages on the ground of malice, if the defendant can
be expressly connected with the circulation ; if he cannot, no presump-
tion of malice can be drawn, but the fact will still be in evidence to
show the extent of injury done. This was so ruled in a case where
the defendant was the publisher of a newspaper, which was indus-
triously circulated in a particular neighborhood, and sent gratuit-
ously to several non-subscribers, but not by the defendant.! The
same rule would clearly apply to a person not the publisher, if he
puts his libel into a shape which would insure its circulation, as into
a newspaper. Of course he would not be responsible for its repub-
lication by a third person, in a way which he could not have antici-
pated; as for instance, if a private letter containing a libel was
printed by the receiver, without his knowledge.’

[*420]

Sec. 660. When evidence of malice is inadmissible.

There may, however, be cases in which, from the form of action,
evidence of malice would be inadmissible. Accordingly in an
action against the publisher of a magazine, no evidence can be
given of the malice of the writer, who is a different person, and for
whose motives the editor cannot be liable, though he is responsible
by law for his acts.° And so the position of the plaintiffs may
exclude evidence which would otherwise be allowable.

Sec. 661. Joint actions.

In a joint action by partners for a libel, no damages could till
lately be given for the injury to their feelings, as the only basis of
the joint action was the injury to their joint trade.‘ Now there
seems no reason why partners should not recover separate damages
in addition to their joint damage.* And in a joint action by hus-
band and wife for a libel on the wife, no special damages could be
recovered on the joint count, because any such was damage solely
accruing to the husband.’ But in an action brought by a

1 Gathercole v. Miall, 15 M. & W. 4 Haythorn v. Lawson, 3 C. & P.

319. 196; Lefanu ». Malcomson, 8 Ir. L. R.
2 See Ward v. Weeks, 7 Bing. 211, 418.

et post, p. 684. ° Ord. 16, Rule 1; Booth v. Briscoe
* Robertson ». Wylde, 2M. & Rob. 2Q. B.D. 496.

101. ® Dengate v. Gardiner, 4M. & W. 5.

79
626 Deramation.

*man and his wife for an injury done to the wife, in respect
of which she was necessarily joined as co-plaintiff, the hus-
band might add claims in his own right.! Now, claims by the
husband and wife may be joined with claims by them separately.’
Therefore damages, whether joint or several, can be recovered if
properly claimed.

[4291]

Sec. 662. Substantial damages may be given without proof of actual injury.

Where the cause of action is proved or admitted, the jury are
not limited to nominal damages, though no evidence is given on the
part of the plaintiff.* In a recent case the action was for a news-
paper libel published more than seventeen years ago. In bar of the
statute it was proved that a single copy had been sold by the defend-
ant to plaintiff’s agent. It was held that the judge was not bound
to tell the jury that they ought to limit the damages to the injury
which they might believe the single publication had occasioned.* In
the particular case there were other counts for other libels more or
less connected with it, which would have made the separate assess-
ment of damages very difficult; but on principle the decision is
obviously correct.

Sec. 663. Future damage.

Where the words are actionable without special damage, the jury
may take into consideration not only the injury that has arisen, but
that which may arise from the slander ; because such fresh injury
would constitute no fresh ground of action.’ But it is said by
Nort, ©. J., in the same case,’ that if the words are not in them-
selves actionable, the jury in computing damages ought only to con-
sider the damage which is specially alleged and proved; because if
any damage be at a future time sustained a subsequent action will
lie for it. And so where evidence of special damage, subsequent to
the commencement of the suit, was admitted by consent, Tuxpat, C.
J., said, “ By permitting this evidence to be given, the defendant
may possibly have escaped having a second action brought against

[429] him.”” But this is opposed to the authority of a *distin-
115 & 16 Vict. 376, § 40. 150; Ingram v. Lawson, 6 Bing. N.
2 Ord. 17, R. 8. C. 218; Gregory v. Williams, 1 C. &

3 Tripp v. Thomas, 3 B. & C. 427. K. 568.

*Duke of Brunswick ». Harmer, 14 * Lord Townsend ». Hughes, supra.
Q. B. 185. "Goslin v. Corry,'7 M. & G. 342,

5 Lord Townsend v. Hughes, 2 Mod. 845. .
DEFAMATION. 627

guished judge, who lays it down, that where a plaintiff has once
recovered damages he cannot afterward bring an action for any
other special damage, whether the words be in themselves action-
able or not.

Sec. 664. Evidence of specific injury after action brought.

Of course special damage, laid as such, must have accrued before
action; but a different question arises, whether a specific injury
after action may be given in evidence to enable the jury to esti-
mate the amount of general damage? An action was brought by a
ship-owner for a libel, which stated that his ship, then advertised to
sail to the East Indies, was not seaworthy, and was purchased by
Jews to take out convicts. No special damage was laid. The action
was commenced three days after the libel was published. Evidence
was admitted of the average profits of a voyage to the East Indies
and that the first voyage after the libel, the plaintiffs profits were
nearly 1,5002. below the average. It was held that the evidence was
rightly received. The jury must have some mode of estimating the
damages, and they could not be in a condition to do so, unless they
knew something of the plaintiffs business, and of the general return

of his voyages.’

1 Bull. N. P. 7; citing Fitter v. Veal,
Ca, K. B. 542.

?Ingram ov. Lawson, 6 Bing. N. C.
212.

Where special damage is essential to
the action, the plaintiff must prove it
as alleged in his declaration. It must
be shown that the damage was the
natural and immediate consequence of
the slander. The general rule is, that
no evidence of special damage is ad-
missible, unless it is averred in the dec-
laration; and thisis so whether special
damage is the gist of the action, or is
used as matter of aggravation, when
the words are in themselves actionable.
And greater certainty is requisite
where the special damage is gist of the
action, than where it is merely laid by
way of aggravation. Anonymous, 60
N. Y. 262; Terwilliger ». Wands, 17
id. 54. It must be of a pecuniary na-
ture, asloss of fuel, food, clothing, or
any valuable thing withheld as an im-
mediate consequence of the speaking
of the words, and their effect upon

The same principle was applied where the action

those withholding them. Beach ».
Ranney, 2 Hill (N. Y.), 309. And the
proof must show that the withholding
of such benefits is entirely the result
of the speaking of the words. Anony-
mous, 60 N. Y. 262; Hallock ». Miller,
2 Barb. (N. Y.) 630.

Where the words or libel are in
themselves actionable, no proof of
special damage is necessary, although
alleged. But the plaintiff cannot in
that case, any more than where the
special damage is the gist of the action,
give evidence of any consequential
damage, which is not alleged in the
declaration. Herrick v. Lapham, 10
Johns. (N. Y.) 281; Dicken ». Shep-
herd, 22 Md. 399; Bostwick v. Nickel-’*
son, Kirby (Conn.), 65; Harcourt ».
Harrison, 1 Hall (N. Y.), 474; Ship-
man v. Burrows, id. 399; Stevens ».
Hartwell, 11 Metc. (Mass.) 542. It is
always necessary to show in what
manner the plaintiff’s character could
suffer from a libelous imputation.
Thus, a declaration alleging that by
628

DeramarTIon.

was for a description of the plaintiff in the Hue and Cry, in
consequence of which he was arrested. The arrest, which was laid
specially, took place after action brought. Evidence of it was allowed

reason of false and malicious testimony
of the defendant as witness in a for-
mer action that the character of the
plaintiff for truth was bad, the plain-
tiff suffered special damage, and had
to pay a certain sum in costs to the de-
fendant in the former action, is bad,
for want of allegation as to how the
special damage was caused. Cook v.
Cook, 100 Mass. 194.

The law does not require that the
special damage resulting from a slan-
der should be the necessary conse-
quence arising from the utterance of
the words; it is sufficient if it is the
direct, natural and probable conse-
quence or effect. But it must not be
too remote. Lynch v. Knight, 9 H.
L. 591; Sterry 0. Foreman, 2 C0. & P.
592. Where the words complained of
produce special damage, statements
contained in a letter to a third person,
who acted thereon to the plaintiffs
damage, may be proved in support of
special damage. Fowles v. Bowen,
30 N. Y. 20.

Where the damage consists in the
loss of marriage, the plaintiff cannot,
without specifying the individual
with whom the marriage would other-
wise have been contracted, give evi-
dence of the loss. So if he allege
loss of marriage with A, he cannot
give in evidence damage occasioned
by the loss of marriage with any other
person. Barnes v. Prudling, 1 Vent.
4; Hunt v. Jones, 12 Mod. 597; Hart-
ley ». Herring, Lord Raym. 1007.

Where the special damage alleged is
that of the loss of hospitality of
friends, the names of such friends
should be stated in the declaration; if
not stated, the plaintiff may be com-
pelled to supply them on application
by the defendant at chambers for
particulars. At the trial it must be
proved that the plaintiff derived some
substantial benefit from the alleged
hospitality, which she has lost in con-
sequence of the slander by the defend-
ant. See the cases Moore v. Meagher
and Davies and wife ». Solomon,
supra; Anonymous, 60 N. Y. 262;
es v. Miller, 2 Barb, (N. Y.)

0.

Where the words spoken imputed
unchastity to a married woman, and
she was, in consequence, excluded
from a private society of which she
was a member, and prevented from
obtaining a certificate, without which
she could not become a member of
any other society of the same nature,
it was held not special damage suffi-
cient to support the action; that
special damage can only be shown by
proving an injury to the material inter-
ests of the person slandered; that all that
was shown in this case amounted only
to the loss of the nominal distinction
of being a member of the society,
which was no more than the loss of
consortium vicinorum. Butif the plain-
tiff could have shown the loss of any
thing substantial which could attach to
the membership of the society, such as the
loss of a seat in the chapel, or of the op-
portunity of attending at the divine wor-
ship in that place, and which the plaintif?
had lost by reason of the slander, such
might have been sufficient. Roberts ».
Roberts, 33 L. J. Q. B. 249.

The loss of a customer is special
damage, although if the dealing had
taken place with such customer it
would have been a losing transaction.
Storey v. Challands, 8C. & P. 284.

In an action for slander, by which
the plaintiff has lost his customers, it
was formerly held that he could not
give in evidence the loss of any whose
names were not specified in the decla-
ration. Hartley ». Herring, 8 T. R.
130. That doctrine, however, has
been virtually overruled; and it isnow
held that in an action for slander of
the plaintiff in his business it is suffi-
cient to allege and prove, as special
damage, a general loss of custom,
without stating the names of the cus-
tomers who have ceased to patronize
him. Dixon v, Smith, 5 H. & N. 451.
A plaintiff, under an allegation -of
ue injury, may show a general

iminution of business; but if he seeks
specific damages, he must give specific
evidence. Delegall v. Highley, 8 C. &
P. 444.

In estimating the damages for a
libel published of a man in the way of
DEFAMATION.

629

by consent of defendant’s counsel, who then objected that the judge
ought to have excluded it from the minds of the jury in assessing

the damages.

his business, the jury must have some
evidence as to the nature and extent
of the business carried on by the
plaintiff: for the same amount of dam-
age ought not to be given in a case
where the plaintiff’s business is small,
as where it is large. Ingram v, Law-
son, 6 Bing. N. C. 212. The connec-
tion between the wrong done by the de-
fendant and the loss to the plaintiff is
matter of evidence. Where the defend-
ant asserted that the plaintiff had cut
his master’s cordage, upon which the
master had discharged the plaintiff
from his service, although he was
under an engagement to employ him
for aterm, the court held that the
discharge was not a ground of action,
since it was not the natural conse-
quence of words spoken, the damage
must be attributable wholly to the
words. Vicars v. Wilcocks, 8 East, 1;
Morris v, Langdale, 2 B. & P. 284;
Anonymous, 60 N. Y. 262; Terwilli-
ger v. Wands, ante; Hallack». Miller,
ante.

Evidence cannot be received as to
damages occasioned to other persons
than the plaintiff, as, for instance, to
his wife, although she was one of the
persons assailed in the libel; as in a
case where the libel imputed that the
plaintiff kept a gaming house under
the leadership of a woman of notori-
ous character. Guy v. Gregory, 9 C.
& P. 584. Where the declaration was
for slander spoken of the defendant
on the Royal Exchange in his business
of a captain in the merchant service,
and it was alleged that by reason of
the slander divers persons (naming
them) ‘‘who would otherwise have re-
tained and employed the plaintiff de-
clined and refused to do so,” the evi-
dence showed that other persons
would have recommended the plaintiff,
and that the persons named in the
declaration would have employed him
on such recommendation, It was ob-
jected that the special damage was
not proved as laid; that the persons
alluded to did not refuse to employ;
that it is true they did not employ,
but that was not on account of the

It was held that the judge’s charge was right, as he

slander, but on the ground of the non-
recommendation; and Bust, C. J.,
allowed the objection. Sterry 2.
Foreman, 2 OC. & P. 592. “And see
Hoey ». Felton, 11 C. B. (N.S) 142;
31 L. J. C. P. 105.

The spirit and intention of the party
publishing a libel are fit to be consid-
ered by a jury in estimating the injury
done to the plaintiff; and evidence
tending to prove it cannot be excluded
simply because it may disclose another
and different cause of action. There-
fore either party may, with a view to
the damages, give evidence to prove
or disprove the existence of a mali-
cious motive in the mind of the pub-
lisher of defamatory matter. But if
the evidence given for that purpose
establish another cause of action, the
jury should be cautioned against giv-
ing any damages in respect of it. And,
if such evidence is offered merely for
the purpose of obtaining damages for
such subsequent injury, it will be
properly rejected. Evidence of words
used by the defendant upon the same
subject, at other times, conveying the
same imputation although in substan-
tially different language, are admissi-
ble for the purpose of showing malice;
Baldwin v.Soule, 6 Gray (Mass.), 321;
Downs v. Hawley, 112 Mass. 242; even
after suit brought, if restricted in their
application to proof of malice. They
cannot goin enhancement of damages ;
Sonneborn ». Bernstein, 49 Ala. 168;
Ellis ». Lindley, 38 Iowa, 461; Hinkle
v. Davenport, id. 355; but it seems
that such evidence is not admissible
until the speaking of the words charged
in the declaration are proven; when
that is done, the speaking of similar
words before or after suit brought, is
admissible to establish the guo animo.
Hansbrough »v. Stinnett, 25 Gratt.
(Va.) 495. When extrinsic matter is
introduced into the declaration or
complaint, and it alleges that the
words set forth apply to such matter,
the plaintiff, in order to support his
innuendo, is bound to prove such
matters and their application. Strader
v. Snyder, 67 Ill. 404. In this country
6380

DEFAMATION.

did not tell the jury that they were at liberty to give damages for
the arrest which took place after action brought, but that they might
view it as a confirmation of the plaintiff's apprehension that an

damages can only be recovered up to
the time of bringing the action, and
for the words charged. Beardsley v.
Bridgman, 17 Iowa, 290; McAlmont
vo. McClelland, 14 S. & R. 359; Scott
». Mortsinger, 2 Blackf. (Ind.) 454;
Burson o. Edwards, 1 Ind. 164;
Schrimper v. Heilman, 24 Iowa, 505.
In Frazier 0. McCloskey, 60 N. Y. 337,
Rapa1o, J., very clearly announced
the rule and the reason therefor, thus:
He said, ‘‘We think that the court
below erred in admitting evidence of
slanderous words uttered after the
commencement of the action. It was
claimed that this evidence was admis-
sible for the purpose of proving malice
and enhancing the damages for the
speaking of the words charged in the
complaint. It has been decided that
a repetition of the words charged in
the complaint or the speaking of them
at times other than those laid in the
complaint, may be shown, but in all
these cases the occasions on which
the slander was uttered were before
the commencement of the action.
Root ». Lowndes, 6 Hill (N. Y.), 518,
the admissibility of the evidence was
placed upon the ground that the judg-
ment would be a bar to another action.
In Titus v. Sumner, 44 N. Y. 266 *
* such prior slander was barred by
the statute of limitations. The same
was the case in Inman »v. Foster, 8
Wend. (N. Y.) 602. The plaintiff
should never be permitted to give evi-
dence of words that may form the
grounds of another action.” But,
contra, holding that the repetition of
the slander after suit brought may be
given to enhance damages. Williams
v. Harrison, 3 Mo. 411; Root 2.
Lowndes, 6 Hill (N. Y.), 518; Hatch
v. Potter, 7 Ill. 725; Allensworth 0.
Coleman, 3 Dana (Ky.), 315; Chipman
v. Cook, 2 Tyler (Vt.), 456; Williams
vo. Greenwade, 3 Dana (Ky.), 433; Scott
v. Peebles, 10 Miss. 546. Thus evi-
dence, that the defendant after action
brought had repeated the words sev-
eral times, was held inadmissible.
Forbes ». Myers, 8 Blackf. (Ind.) 74;
Schenck v, Schenck, 20 N. J. 208.

In:

In an action of slander the plaintiff,
in showing special damage, must con.
fine his proofs to the evidence of per-
sons who heard the defendant speak
the words. For repetitions by a third
party who heard the defendant speak
them the defendant is not liable. Ru-
therford v. Evans, 4 C. & P. 74; Ward
o. Weeks, 7 Bing. 211; Tunnicliffe v.
Moss, 3C. & Kir. 83; Dixon 2. Smith,
5 H. & N. 451.

The existence of a slanderous rumor
will not justify the repetition of it,
unless the defendant can prove that he
believed it to be true, and repeated it
on a justifiable occasion, for no man is
at liberty to circulate rumors that may
be injurious to the commercial charac-
ter of another, and then to shelter
himself under the plea that he did not
invent them. Watkin». Hall, L. R.,
3 Q. B. 396.

The jury may take into considera-
tion the nature of the imputation, how
it has been made, and how persisted
in down to the time of the verdict.
The defendant’s conduct, in putting a
justification on the record which he
does not attempt to prove and will not
abandon, may be taken into considera-
tion as proving malice and aggravating
theinjury. Asin an action for slander.
to which the general issue and a justi-
fication were pleaded, the plaintiff at
the trial expressed his willingness to
accept an apology and nominal dama-
ges, the defendant not persisting in
his justification; but the defendant
refused to make any apology, and of-
fered no evidence in support of the
plea of justification and refused to
withdraw the charpe; the jury were
directed, with reference to the ques-
tion of damages, to consider the nature
of the imputation, how it had been
made, and how persisted in down to
the time of the verdict; and this di-
rection was upheld. Simpson v. Robin-
son, 12 Q. B. 518. And where the
defendant at the trial abandoned his
plea of justification, and apologized
for it, it was held that the apology
and abandonment came too late, and
that the jury might, in estimating the
631

arrest would be the probable consequence of the libel.! This was
obviously the only way in which the evidence could be used, but it
seems to have been assumed throughout that it was not strictly ad-
missible at all. Now it is plain, that in estimating damages the jury
must be greatly influenced by the probability that an arrest would
take place, and on the principle of Ingram v. Lawson, *evi- [#493]
dence that it had taken place, even after action, was surely
admissible. Possibly the difficulty in this case arose from the fact,
that that very arrest was laid as special damage, and to prove that
allegation it plainly was inadmissible.

DeEraMATION.

Sec, 665. Proof of general injury.

Where words are in themselves actionable, no special damage
need be laid or proved; the law presuming that the uttering of the
words, or the publishing of the libel, have in themselves a natural
and necessary tendency to injure the plaintiff? From this the curious
inference seems to be drawn, that because the law assumes that a
general injury will follow, you cannot prove that a general injury
has followed. In an action for a libel against a trader, special dam-

damages, consider the fact of the de-
fendant persisting in the truth of his
imputation by putting such a plea on
the record, and only abandoning it at
thelast moment. Warwick v. Foulkes,
12 M. &W. 507. Any thing in con-
nection with the publication of the
libel, or speaking of the words, that
is calculated to increase the damage,
or that tends to show a malicious or
bad feeling on the part of the defend-
ant toward the plaintiff, may be
shown in aggravation ; Jellison 0. Good-
win, 43 Me. 287; as the occasion, the
circumstances, the manner in which
the words were spoken, and all the
circumstances that go to show indig-
nity or malice, and also in connection
with such facts, the plaintiff may show
his rank and condition of life; Larned
v. Buffington, 3 Mass. 546; Bodwell .
Swan, 3 Pick. (Mass.) 376; and the
wealth of the defendant; Karney v.
Paisley, 13 Iowa, 89; Barber ». Barber,
33 Conn, 335; but contra, see Palmer ».
Haskins, 28 Barb. (N. Y.) 90.

Where the libel is published in a
newspaper, evidence may be given to

1 Goslin v. Corry, 7 M. & Gr. 842.

show. the extent of the circulation of
the newspaper, and consequent injury
to the plaintiff, by proving that copies
of it containing the libel have been
gratuitously circulated in the neighbor-
hood in which the plaintiff resides,
though it be not shown that such
copies were sent by the defendant, the
publisher. But in directing the jury
as to damages, it is not necessary to
caution them as to the injury sustained,
by telling them to take into considera-
tion the fact that one publication only
has been proved, and that a mere sale
of the libel to the plaintifi’s agent.
Gathercole, Clerk, v. Miall, 15 M. &
W. 319; Duke of Brunswick ». Har-
mer, 14 Q. B. 189.

Where there is no actual injury, the
jury may find a verdict for nominal
damages; and may consider the ques-
tion of costs. Wakelin v. Morris, 2
F. & F. 26; Davis v. Cutbush, 1 id.
487; Pemberton v. Colls, 10 Q..B.
461; 16 L. J. Q. B. 408. And see
Dadd ». Crease, 2 Cr. & Mees, 223-4,
Tyrw. 74.

?Malachy v. Soper, 3 B. N. C. 382.
632 DeErFraMarTION.

age waslaid. Plaintiff's counsel proposed to rely only on general
injury, and to ask whether there had not been a general loss of
business since the libel. Tupat, C. J., said, “No, that would be so
very hard against the party. You set out with that, you see. The
law gives it to you asa bonus. If you want specific damages you
must give specific evidence.”! Where, however, the action was for
libel on an actress, in consequence of which she would not sing,
and the declaration alleged as damages the loss of several per-
formances, Lord Kznyon ruled that the box-keeper might be asked
generally, whether the receipts of the house had not diminished
from the time Madame Mara had declined to sing? but that to ask
if particular persons had not in consequence given up their boxes, was
specific damage and inadmissible.* Similar evidence was received
in the case of Ingram v. Lawson.* There, however, it seems to have
been admitted, not with a view to show what the plaintiffs loss had
been, but what the general nature of his business and profits was.
For it will be remarked that though the evidence showed a falling
off of 1,5002., the jury only found a verdict for 9007. In Rose »v.
Groves, CrEsswELL, J., took a distinction between particular and
special damage, saying, “In an action for slandering a man in his
trade, where the declaration alleges that he thereby lost his trade,

he may show a general damage to his trade, though he can-
[*424] 3 3 .

not give *evidence of particular instances.”* There seems
a difficulty with regard to the admission of the evidence, as to the
mode of connecting the slander with the falling off. On the other
hand, there is an obvious injustice in excluding what, in the mass of
cases, must be the only evidence of damage really procurable.

Delegall v. Highley, 8 C. & P. 448.
Evidence of special damage cannot be
given, unless it is alleged in the de-
claration. Bostwick » Nickelson,
Kirby (Conn.), 65; Bostwick 0. Haw-
ley, id. 290; Shipman v. Burrows, 1
Hall (N. Y.), 399; Harcourt ». Har-
rison, id. 474; Dicken ». Shepherd,
22 Md. 399; Herrick v. Lapham, 10
Johns. (N. Y.) 281.

? Ashley v. Harrison, 1 Esp. 48.

5 Ante, p. 627.

45 M. & Gr. 618. So Evans ».
Harries, 1H. & N. 251, infra. Riding
oo 1 Ex. D. 91; 45 L. J. Ex.

See the Text Bks., Selw. N.P., 12th
ed., 1269; Com. Dig. Action upon the
case for Defamation, D. 30. See, also,
Malachy ». Soper, 3 B. N. C. 371;
Ayre v0. Craven, 2 A. & EH. 2; Evans
2. Harlow, 5 Q. B. 624; Wilby 2.
Elston, 8 C. B. 142; Hopwood ».
Thorn, id. 293; Dixon 2. Smith, 5 H.
& N. 450; 29 L. J. Ex. 125; where it
was held that general damages for
loss of business, which might have
resulted from a repetition of the
slander, could not be recovered.
Deramation. 633

Sec. 666. Special damage must be laid.

Special damage must be laid and proved, where the words are
not actionable without it. In this case the special damage is the gist
of the action.

Even though the words are in themselves actionable, no evidence
of any specific loss sustained in consequence of them can be ad-
duced, unless laid in the declaration.1 It is sufficient, however, to
state the special damage with as much certainty as the case will
admit of. It has been said that if a trader brings an action for
slander, by which he has lost his customers, their names must
be set out specially, that the defendant may meet the charge if it be
false; and that where this is not done, general evidence of loss of
customers cannot be received.” Buta clergyman laying as special
damage the loss of his congregation, is not required to state their
names, on account of the supposed impossibility of so doing? The
principle is clear enough, but the distinction between the two cases
seems rather fine. Andrecently, in an action for slander of the
plaintiff in his business of an innkeeper, it was held sufficient to
allege and prove as special damage a general loss of custom, with-

out stating the names of customers.‘

Sec. 667. Special damage must be the result of defendant's own acts.

Asa special damage, which must be the loss of some
*material temporal advantage,° that only which is the natural

[#425]

and fair result of the words spoken can be laid, or proved. The ap-
plication of this rule is not so very easy. One point has been fre-

'Geare v. Britton, B. N. P. 7;
Hatheway ». Newman, Selw. N. P.
1248.

Where special damage is claimed,
it must be alleged and proved, and a
mere allegation that in consequence
of the speaking or writing of the
charge the plaintiffs relatives slight
and shun her, does not specify an in-
jury for which an action will lie. Bas-
sil. Elmore, 65 Barb. (N. Y.) 627.
Damages to be recoverable or form
the ground of an action must be the
natural and immediate consequence of
the words spoken or written. Terwil-
liger o. Wands, 17 N. Y. 57. In an
anonymous case, 60 N. Y. 262, the
slander alleged was a charge against
the plaintiff of self pollution. The

80

plaintiff was a young girl, and the
special damage alleged was a refusal
by the father, in consequence of the
charge, to furnish her with certain
articles of dress he had promised her,
and a course of music lessons. The
court held that this was not such an
allegation of special damage as would
uphold an action.

? Hartley v. Herring, 8 T. R. 188;
Waterhouse v. Gill, Selw. N. P. 1248,
10th ed. See, however, per Cress-
WELL, J., ante, p. 632.

3 Hartley o. Herring, 8 T. R. 180.

‘Evans v. Harries, 1H. & N. 251.
And see M’Loughlin v. Welsh, 10 Ir.
L. R. 19.

5 Roberts and Wife ». Roberts, 5
B. &S, 384; 33 L. J. Q. B. 249,
634 Deramation.

quently laid down, viz., that no damage can be recovered for, which
is the result, not of the original slander by the defendant, but of the
repetition of that slander by some third person. In such a case, the
immediate cause of the plaintiff's damage arises from the voluntary
act of a free agent over whom the defendant has no control, and
for whose acts he is not answerable.! But where the words are used
under circumstances which render it certain that they will be repeated,
and they are repeated by persons whose duty it isto report them,
injury accruing from such report is it seems admissible; as where a
police constable was dismissed in consequence of language addressed
to him by a police magistrate in trying a cause, which was reported
in due course to the commissioners.’

Sec. 668. When the act of a third party will be good special damage.

It was once thought that damage resulting from the act of a third
party, though caused by the language of the defendant, would not
be actionable if it was in itself a ground of action by the plaintiff
against such third party.2 This doctrine, however, was long
doubted,* and is now finally overruled.’ In practice the same result .
will probably be reached in many cases, by aid of the doctrine that
damages must not be too remote. Where the act of the third party
is plainly rash and illegal, it will perhaps be held not to be the natu-
ral result of the defendant’s words.

Sec. 669. Where damage is the natural result of the slander.

But if the obvious intention, or the natural result of the defend-
ant’s words was to induce another to commit an illegal act, there
[496] seems no reason why he should not be made *answerable for

the consequences. In Lynch v. Knight,’ Lord WansLeyDALE
said, ‘I strongly incline to agree with Mr. Justice Curistian, that
to make the words actionable, by reason of special damage, the con-

‘Ward ». Weeks, 7 Bing. 211; derous abuse of herself. Parkins .
Vicars ». Wilcocks, 8 Hast, 1; 2 Scott, 1 H. & ©. 153; 31 L. J. Ex.
Smith’s L. C, 534, 7th ed.; Tunnicliffe 331.

% Moss, 3 C. & K. 83; Dixon ». 3 Vicars v. Wilcocks, 8 East, 1; 2
Smith, 5H. & N. 450; 29 L. J. Ex. Smith’s L. C. 534, 7th ed.; Morris v.
125; Bateman v. Lyall, 7 C. B. (N. Langdale, 2 B. & P. 284, 289.

8.) 638. See the subject discussed, 4Green ». Button, 2 C. M. & R.
ante, p. 112 et seq. 707, 2 Sm. L. C. 542-547, 7th ed.

® Kendillon . Maltby, Car. & M. 5 Lumley ». Gye, 2 E. & B. 216.
402; Derry v. Handley, 16 L. T. (N. 69H. L. Cas, 577; 2 Sm. L. C. 541,
8.) 263, Q. B. It is not the duty of ‘7th ed.

a wife to report to her husband slan-
Deramation. 635

sequence must be such as, taking human nature as it is, with its in-
firmities, and having regard to the relationship of the parties con-
cerned, might fairly and reasonably have been anticipated and
feared would follow from the speaking of the words, not what would
reasonably follow, or we might think ought to follow.” “I cannot
agree that the special damage must be the natural and legal conse-
quence of the words, if true. Lord ExLenzoroven puts as an ab-
surd case, that a plaintiff could recover damages for being thrown
into a horse-pond, as a consequence of words spoken; but I own I
can conceive that when the public mind was greatly excited on the
subject of some base and disgraceful crime, an accusation of it to an
assembled mob might, under peculiar circumstances, very naturally
produce that result, and a compensation might be given for an act
occurring as a consequence of an accusation of that crime.” Sup-
pose, for instance, that during the war of 1870, an Englishman had
been pointed out to a Parisian mob as a German spy, and thrown
by them into the Seine, it could not be contended that one act was
not the natural and necessary consequence of the other. In Lynch
v. Knight, the special damage, which was alleged as making the
words actionable, was that they imputed to the wife unchastity, in
consequence of which the husband refused to live with her. There
the judges doubted whether the words really did contain any impu-
tation upon the wife, which would naturally have led the husband to
act as he did. The case was further complicated by the circumstance
that the wife was plaintiff, and had to join her husband for con-
formity. Consequently he was, in fact, complaining of his own act.
But the majority of the lords seemed to have no doubt upon the
general principle, that a man would be responsible for an injury
which was the natural result of his own words, though the injury
was in itself an illegal act. For instance, suppose a person in-
formed a husband that he had just seen a man committing adultery
with his wife, and the husband immediately followed the alleged
*paramour, and horse-whipped him; could it be contended
that the slanderer would not be liable to an action, in which
damages for the assault would be recoverable ?

[#427]

Sec. 670. Special damage too remote.

Where an actual injury has followed the slander, it is no answer
636 Deramation.

to show that the third person would have probably acted in the
same way, had the slander not been used,! if the act did in fact fol-
low from the words. But an injury which did not naturally ensue.
from the libel, and might have arisen from other causes, cannot. be
ground of action. Defendant published a libel on an actress whom
plaintiff had engaged to sing for him; she refused to sing from fear
of being hissed, and he claimed for loss of profits. Lord Kenyon
said, the injury was too remote and impossible to be connected with
the cause assigned for it. Her refusal to perform might have pro-
ceeded from groundless apprehension of what might never have

happened, or from caprice or insolence.’

' Knight ». Gibbs, 1 Ad: & Ell. 48;
cited ante, p. 90:

? Ashley v. Harrison, 1 Esp. 49. See
Haddan ». Lott, 15 C. B. 411; 24 L.
J.C. P. 49.

Illness arising from the excitement
which the slander may have produced
is not a kind of damage which forms
a ground of action. Soin an action
by husband and wife for slander, im-
puting incontinence to the wife, and
alleging as special damage that the
wife became ill and unable to attend
to domestic affairs and business, and
that the husband incurred expense in
curing her, etc., it was held, on de-
murrer, that the declaration disclosed
no cause of action; Allsop and wife.
Allsop, 5 H. & N. 534; 29L. J. Ex.
315; and the ruling in that case was
afterward confirmed in the House of
Lords; Lord CampBetu (Chancellor)
observing, that in his opinion that
case was well decided, and that
mere mental suffering or sickness,
supposed to be caused by the speak-
ing of words not actionable in
themselves, would not be special
damage to support an action. See
Lynch ». Knight and ux., 9 H. L.
592; Pugh ». McCarty, 40 Ga. 444,
contra. But it was held by Lord
CAMPBELL, in the same case, that a wife
can maintain an action against a third
person words occasioning to her the
loss of the consortium of her husband;
and Lord Cranworts expressed him-
self as strongly inclined to think the
view taken by Lord CampBE.t in that
respect was correct. But Lord WEns-
LEYDALE, after stating that he had con-
siderable doubt upon the point, said he

Of course, where words

had made up his mind that no such ac-
tion would lie. Same, 9H. L.577; and
see Roberts and wife v. Roberts, 33 L.
J. QB. 249; 5B. & 8. 384. It was
said that if the wife can maintain such
an action, the words must be such,
that, from them, the loss of the consor-
tium follows as a natural and reasona-
ble consequence ; and therefore where
a wife brought an action (her husband
being joined as plaintiff for con-
formity) against A fora slander uttered
by him to her husband imputing to
her that she had been ‘‘all but se-
duced by B before her marriage, and
that her husband ought not to suffer
B to visit at his house;” and the
special damage alleged was, that
in consequence of the slander the hus-
band had compelled her to leave his
house and return to her father, where-
by she lost the consortium of her hus-
band, it was held that the cause of
complaint thus set forth would not sus-
tain the action, inasmuch as the special
damage relied upon did not arise from
the natural.and probable effect of the
words spoken by the defendant, but
from the precipitation or idiosyncrasy
of the husband in dismissing his wife
from his house when he was only cau-
tioned not to let her mix in society.
Lynch ». Knight, 9H. L. 577. In the
above case, Lord CAMPBELL observed:
‘‘Although this is a case of the first
impression, if it can be shown that
there is presented to us a concurrence
of loss and injury from the act com-
plained of, we are bound to say that
this action lies. Nor can I allow that
the loss of consortium, or conjugal so-
ciety, can give a cause of action to the
DeEraMaTION.

637

do not in themselves, or by the interpretation put upon them by the
plaintiff in his declaration, bear a defamatory meaning, no amount
of special damage will form a ground of action, or be admissible in

husband alone. If the special damage
alleged to arise from the speaking of
slanderous words, not actionable in
themselves, result in pecuniary loss, it
is a loss only to the husband; and
although it may be the loss of the per-
sonal earnings of the wife living sepa-
rate from her husband, she cannot join
in the action. But the loss of conjugal
society is not a pecuniary loss; though
I think it may be a loss which the law
may recognize to the wife as well as to
the husband.” And his Lordship
added that had the words contained a
direct charge of adultery against the
wife, he should have thought the alle-
gation of special damage sufficient to
support the action. Lord BroueHam,
however, expressed his doubts as to
that proposition, so far as it related to
an imputation of adultery before mar-
riage. Lynch v. Knight, ante.

Where a slander is uttered of a mar-
ried woman, and she informs her hus-
band of it, and he in consequence of
such slander refuses to cohabit with
her, the original utterer of the slander
is not liable for the consequences of
such repetition by the wife to her hus-
band. So in a case where the defend-
ant imputed adultery to the plaintiff's
wife, and she voluntarily repeated the
slander to her husband, whereby he
refused to cohabit with her, it was
held that no action was maintainable
against the defendant. Parkins and
wife v. Scott and wife, 1 H. & C. 153;
but see Derry v. Handley, 16 L. T.
(N. 8.) 263.

A mere apprehension of ill conse-
quences cannot constitute a special
damage; so that it has been held to be
insufficient for the plaintiff to allege,
that in consequence of the words, dis-
cord happened between him and his
wife, and he was in danger of a di-
vorce. 1 Roll. 34. Or, to allege that
the plaintiff was exposed to her par-
ent’s displeasure, and in danger of
being put out of their house. Barnes
». Bruddell, 1 Lev. 261. Or, to say
he lost the affection of his mother,
who intended him 1002. Car. 1; 1

Com. Dig. tit. Defam. D. 30. But in
an action for libeling a copartnership,
CRESSWELL, J., held that the jury might
take into their consideration in esti-
mating the damages to which the
plaintiffs were entitled, the prospect-
ive injury which might accrue to the
partnership from the defendant’s act.
Gregory and another v. Williams, 1
Car. & Kir. 568, And see Ingram 2.
Lawson, 6 Bing. N. C. 212.° In True
». Plumley, 36 Me. 466, the court held,
that in estimating damages in an ac-
tion for slander, the jury should con-
sider the probable future as well as
the actual past.

As to how the special damage must
be connected with the slander, in or-
der to constitute a ground of action,
it was said by Hott, C. J., that ‘at
common law, if a man do an unlaw-
ful act, he shall be answerable for the
consequences, especially where the act
is done with the intent that conse-
quential damage shall follow.” Ld.
Raym. 480. Butitisnot essential that
the damage should be the necessary
and inevitable consequence of the
slanderous words; it is sufficient, for
instance, if they impose upon the
plaintiff a violent and urgent motive
for incurring expense. But it must be
the natural and immediate result
thereof. Terwilliger » Wands, 17
N. Y. 57; Anonymous, 60 id. 262.
Thus, where the special damage al-
leged was injury to his wife’s health,
he not establishing any relation be-
tween the slander and the injury to
her health, it was held that no recovery
could be had. Olmsted ». Brown, 12
Barb. (N. Y.) 659. An unmarried
female, dependent on her labor for sup-
port, may sustain an action for words
imputing a want of chastity, where
the special damage alleged is illness
induced by the slander followed by
inability to work. Fuller ». Fenner,
16 Barb. (N. Y.) 333. In the case of
Peake v. Oldham, Cowp. 277, Lord
MANSFIELD expressed an opinion that
the expenses of an inquest incurred by
a plaintiff, who had been wrongfully
638

DeramatIon.

evidence. Such special damage is not the natural or necessary con-
sequence of the words;! nor can evidence be received of injury to
other persons than the plaintiff, as, for instance, to his wife, though
she was one of the persons assailed in the libel.?

accused of murder, might be con-
sidered as special damage.

The rule appears to be, that the
damage must be the mere, natural and
direct or reasonable consequence of
the wrongful act. So in a case where
the defendant asserted, that the plain-
tiff had cut his master’s cordage;
upon which the master discharged
him, though he was under an engage-
ment to employ him for a term; it
was held by the court, that the dis-
charge was not a ground of action;
that the. special damage must be the
natural and legal consequence of the
words spoken. Vicars v. Wilcocks, 8
East, 1. And see Miller v. Davis, supra ;
Anonymous, 60 N. Y. 262.

The damage must be attributable
wholly to the words; so that, where
the reason of a person’s refusing to
employ the plaintiff was founded,
partly on the defendant’s words, and
partly on the circumstance of his
having been previously discharged by
another master it was held that no
action was maintainable. Vicars 2.
Wilcocks, 8 East, 1. But the judg-
ment of the court in this case has been
questioned by Lords CamMpBELL and
WENSLEYDALE. See Lynch v. Knight
and wife, 9 H. L. 590 and 600. It
has been said that where, in conse-
quence of the words, a third person
has refused to perform a contract pre-
viously made with the plaintiff, and
which he was in law bound to per-
form, no action is maintainable; for
the plaintiff, in such case, is entitled
to a compensation for the non-perform-
ance of the contract; and, were he
allowed to maintain his action for the
slander, he would receive -a double
compensation for the same injury;

" Morris v. Langdale, 2 B. & P. 284;
Kelly v. Partington, 5 B. & Ad. 645.
But the court of common pleas con-
sidered it still undecided whether
words not in themselves actionable or
defamatory, spoken under circumstan-
ces and to persons likely to create

first, against the author of the slan-
der; and secondly, against the person
who had refused to perform his agree-
ment. Morris v. Langdale, 2 Bos. &
Pul. 284. The doubt, however, seems
hardly sustainable in principle; see
Lumley v. Gye, 2 E. & B. 239; and
the doctrine would, in many instances,
be productive of hardship to the
plaintiff: he may resort, it is true, to
his legal remedy against the person
refusing to perform his contract; but
this can scarcely be considered as a
full and real compensation to the party
who, by the defendant’s wrongful act,
has had a benefit in possession wrested
from him, and converted into a bare
legal right. Besides this, he may have
been put to great trouble, and to some
expense, in respect of which he could
not obtain any compensation, in an
action for the breach of contract.
The damage immediately occasioned
by the slander, that is, the loss of
character and the loss of the immediate
benefit of his contract, and the trouble
and extra expense to which he must
be put to obtain compensation for the
breach of contract, is distinguishable
from the damage arising from the
breach of contract. The loss even of
a gratuitous donation, if it has been
intercepted by means of the defend-
ant’s slander, is sufficient to support
the action. If the objection were well
founded, it would extend to the ex-
clusion of an action to be brought by
any servant who was under a contract
to serve, though the words were in
themselves actionable; for if an actual
dismissal from service would not be an
actionable damage by reason of the
contract, there could be no sufficient
presumption of damage to support the

damage to the subject of the words,

might not when the damage followed

be ground of action; Miller v. David,

a R, 9 C. P. 126; 48 L. J. C. P.
? Guy v. Gregory, 9 CO. & P. 584.
DeraMaATIon.

639

The loss of substantial hospitality, which had been a permanent
addition to the plaintiffs income, is good ground of special damage.’
Loss of the society of acquaintances is not, nor illness resulting

from the slander.”

action. It would be absurd to sustain

an action upon a mere presumption of ©

evil consequences, and to deny it where
the very consequences had resulted.
It is also observable, that the objection
is inconsistent with all the cases, many
of which have occurred where the
special damage has consisted of loss of
marriage, where the party who, by
reason of the slander, broke off the
marriage, was under a promise to
marry. Query; therefore vide Morris
v. Langdale, 2 B. & P. 284. See, also,
the case of Newman. Zachary, Aleyn,
3; where it was held that case would
lie for falsely representing to the bailiff
of a manor, that a sheep of the plain-
tiff was an estray, in consequence of
which it was wrongfully seized. And
see Rex v. Moore, 3 B. & Adol. 184;
Hartley v. Herring, 8 T. R. 130.
Cases in further illustration of the
doctrine that the damages must not
be too remote, are various, as for in-
stance: where the defendant having
libeled a performer at a place of pub-
lic entertainment, she refused to sing,
and the proprietor brought his action
on the ground of special damage,
alleging that his oratorios had, in con-
sequence of her absence, been more
thinly attended; it was ruled, by the
learned judge who presided at the
trial, that the injury was too remote;
that if the performer was really in-
jured, an action lay at her suit; and
that it did not appear but that ‘her
refusal to perform arose from caprice
or indolence. Ashley v. Harrison, 1
Esp. 48. And where the declara-
tion alleged that certain persons
(naming them) who would otherwise
have employed the plaintiff, refused to
do so, the proof was that, but for the
speaking of the words, the persons

‘Moore v. Meagher, 1 Taunt. 39;
Davies and Wife ». Solomon, L. R.,
7 Q. B. 112; 41 L. J. Q. B. 10.

® Allsop v. Allsop, 5 H. & N 534;
29L. J. Ex. 315. And see Roberts ».
Roberts, cited ante, p. 425. Whether

named would have recommended him
to others, which others, had he been
so recommended, would have em-
ployed him, it was held that the dec-
laration ‘was not supported by the
evidence; for the non-employment
arose from non-recommendation. Ster-
ry v. Foreman, 2 C. & P. 592. And
see Haddon v. Lott, 24 L. J. C. P. 49;
Hoey ». Felton, cited infra, “ Hvi-
dence of Special Damage.” So ina
case where the plaintiff was a veter-
inary surgeon, and, for the purpose of
proving the special damage, a person
was called who said he had ceased to
employ the plaintiff since the words
were spoken; but it appeared he was
not present when the defendant ut-
tered them, and therefore must have
heard them from a third party; it was
ruled by Marty, B., that such evi-
dence of damage was inadmissible;
the action for such damage should
have been brought against the party
who repeated the slander. Hirst v.
Goodwin, 3 F. & F. 257.

The plaintiff, having once recovered
damages in an action for words, cannot
afterward recover an ulterior compen-
sation for any loss subsequently result-
ing from the same words. Bull. N. P.
7%. Where the plaintiff, knowing the
defendant’s sentiments, procures the
publication of that from which damage
results, he will not afterward be at
liberty to ascribe his loss to the de-
fendant’s act, but be considered as the
voluntary author of the mischief which
follows. 3B. & P. 592; 5 Esp. 15.
All slanderous words relating to the
same subject are barred by a recovery ;
Campbell v. Butts, 3 N. Y. 173; Root
». Lowndes, 6 Hill (N. Y.), 518; but
not unless it is for the same cause of
action; Henson »v. Veatch, 1 Blackf.

a wife can sue for words occasioning
the loss of the consortium of her hus-
band, was discussed but not decided,
in Lynch v. Knight, 9 H. of L. Cases,
577; 2 Smith’s L. C, 541, 7th ed.
640

DEFAMATION.

Sec. 671. Evidence in mitigation of damage.

[*428]

(ind.) 869; and a recovery for a mali-
cious prosecution is a bar to a recovery
for a libel or slander growing out of
a publication made, or words spoken
for the purpose of having the arrest
made; Sheldon v. Carpenter, 4 N. Y.
597; but a libel or slander before or
after making the complaint is not
barred by such recovery; Schoonover
v. Rowe, 7 Blackf. (Ind.) 202; Rock-
well ». Brown, 36 N. Y. 207; neither
is a recovery, by husband and wife for
a libel or slander against the wife, a
bar to an action by the husband alone
for the same libel or slander applied
to him. Bash v. Sommer, 20 Penn.
St. 159. The defense must be specially
plead. Campbell v. Butts, ante.

By the 6 and 7 Vict., ch. 96, § 2, in
actions for libel contained in any
newspaper or other periodical publica-
tion, the defendant may, under certain
conditions, plead that he inserted in
such newspaper, a full apology for the
libel, and may pay into court a sum of
money by way of amends for the in-
jury sustained by the publication of
the libel. But where the jury find the
apology is not sufficient, it appears
that they should assess the damages
irrespective of the amount paid into
court. Lafone v. Smith, 4 H. &N.
158. And see Jones v. Mackie, L. R.,
3 Ex. 1.

If special damage be laid and proved,
the plaintiff will be entitled to recover
on it: if he fail in proving it, he may
nevertheless, on the trial, resort to,and
recover general damages. Smith »v.
Thomas, 2 Bing. N. C. 880; Brown
v. Smith, 130. B. 596; 22 L. J. CG, P.
151; Evans v, Harries, 1 H. & N. 254;
26 L. J. Ex. 31. But where the words
are not actionable in themselves, it
appears that the plaintiff cannot go
into general damage beyond the special
damage laid. Dixon v. Smith, 29 L.
J. Ex. 125; Price v. Whitely, 50 Mo.
439. And although special damage
be alleged and proved, yet,if the words
complained of are not in their nature
defamatory, the verdict cannot be

*As a general rule any evidence may be given in behalf
of the defendant to prove the absence of malice, with a view

supported. Kelly ». Partington, 5 B.
& Ad. 649; Folkard’s Starkie (Wood’s
ed.). §§ 383-393:

Where there is no actual injury, the
jury may find a verdict for nominal
damages, and may consider the ques-
tion of costs. Wakelin ». Morris, 2
F. & F. 26, per Erin, C. J. A com-
pany’s report containing imputations
on the plaintiff, as manager, was is-
sued to the shareholders: the defend-
ants afterward published it in a news-
paper; and it was ruled by WicuTman,
J., that although privileged as regards
the shareholders, it was not so in re-
spect of the publication in a newspa-
per: yet if the latter publication was
made bona fide, and without malice,
the jury would be justified in giving
merely nominal damages. Davis 2.
Cutbush and others, 1 F. & F. 487.
Rundell v. Butler, 10 Wend. (N. Y.)}
119; Price ». Whitely, 50 Mo. 439;
Dobard v. Nunez, 6 La. Ann, 294; Flint
o. Clark, 18 Conn. 361. In all cases
where the words are actionable per se
as where a clergyman is charged with
intemperance, some damage is pre-
sumed; Bradt 0. Towsley, 18 Wend.
(N. Y.) 254; but if the words are not
actionable per se some damage, how-
ever slight, must be proved. Price o.
Whitely, 50 Mo. 439; Moody v. Baker,
5 Cow. (N. Y.) 851; Linney v. Maton,
13 Tex. 449.

Where the defendant has allowed
judgment to go by default, it is not
incumbent on the plaintiff to adduce
any evidence on the writ of inquiry to
assess the damages. The jury in the
absence of evidence are not confined
to nominal damages. Tripp v. Thomas,
3B. & C. 427.

In an action against two persons
jointly, one of whom suffered judg-
ment by default, the other pleaded
‘‘not guilty.” Upon the question as
to whether the damages should be
jointly assessed, Lord Denman, C. J.,
observed that the question appeared
to be one of great difficulty. “Note to
Watts v. Fraser, 7 A. & E. 233.
DeramatTIon.

641

to mitigate the damages.’ Accordingly he may show that he said,
at the time he spoke the words, that he heard the slanderous matter
from another person whom he named, and may prove the truth of

1 Pearson 2. Lemaitre, 6 Sco. N. R.
607.

In order to justify the speaking of
words charging the plaintiff with a
crime, evidence is not admissible that
the plaintiff committed some other
crime, either in justification or miti-
gation; Ridley o. Perry, 16 Me. 21;
Pallet v, Sargent, 36 N. H. 496;
Whitaker v. Carter, 4 Ired. (N. C.)
461; Eastburn v. Stephens, Litt. (Ky.)
Sel. Cas. 82; Richardson ». Roberts,
23 Ga. 215; Chapman »v. Ordway, 5
Allen (Mass.), 593; and he must
specify the crime with certainty.
Billings », Waller, 28 How. Pr. (N.
Y.) 97; Nall o. Hill, Peck (Tenn.),
325; Andrews v. Van Duzer, 11 Johns.
(N. Y.) 38. In Gillis o. Peck, 20
Conn. 228, the defendant plead the
general issue with notice that he
would offer to prove that, before the
speaking of the words alleged, the
plaintiff committed the crime of adul-
tery with a married woman in the
State of Vermont, whose name was un-
known to the defendant, and openly
declared the same himself at a certain
time and place, and also that he had
committed adultery with a certain
other married woman, naming her,
and in proof of the charge he offered
to prove by a witness that the plain-
tiff had been guilty of familiar, inde-
cent and wanton conduct with the
wonian named in his declaration, and
that he—the plaintiff—stated to that
witness that he preferred married
women because if any consequences
followed, their husbands would be
responsible for them. The evidence
was held inadmissible. In the lan-
guage of Cuurcn, C. J., ‘‘the evi-
dence was irrelevant for every pur-
pose, and was properly rejected.”
‘Where an averment in a petition was
that false and slanderous words were
spoken in reference to certain timber,
which the defendant accused the
plaintiff of stealing, and the answer
admitted and justified as to this, and
further stated that plaintiff had com-
mitted other larcenies, alleging that
the intention of the defendant at the

81

time of speaking the words charged
was to embrace them all, it was held,
that all that part of the answer which
attempted to do something more than
meet the issue tendered by the peti-
tion, constituted no legal defense to
the action, and should have been
stricken out. Houston »; Lane, 39
Mo. 495. He must prove the truth
of the identical matter alleged, to the
satisfaction of the jury. Moberly 2».
Preston, 8 Mo, 462; Offutt v. Early-
wine, 4 Blackf. (Ind.) 460; Crandall ».
Dawson, 6 Ill. 556; Frederitze v. Oden-
walder, 2 Yeates (Penn.), 248. Thus
in an action for words charging a
woman with being a whore, the de-
fendant cannot show that the plain-
tiff is a reputed thief, or that she has
been reported by her own sister as
being a whore. The fact that she
was a whore when the words were
spoken, must be proved by adequate
evidence ; Smith v. Buckecker, 4
Rawle (Penn.), 295; nor can the de-
fendant prove that the plaintiff had
admitted that he had been guilty of a
similar crime. Proof that he was
guilty of the very crime charged will
alone justify the charge. Long ».
Brougher, 5 Watts (Penn.), 439. Thus
when the charge was that the plaintiff
had gone nine miles from home, one
night, to four different colliers’
shanties, and had gone to bed to them,
proof that she committed fornication
with one of the colliers elsewhere than
at the shanties was held not admissi-
ble in justification; Burford ». Wible,
32 Penn. St. 95; nor where the charge
is that a woman is a strumpet, is it
competent to show under a plea in
justification that a witness has heard
things derogatory to her character.
Freeman ». Price, 2 Baily (8. C.), 115.
Where in an action by a clergyman
for words alleging that he had said
that ‘‘the blood of Christ had noth-
ing to do with our salvation more
than the blood of a hog,” it was held
that, under a plea of justification, it
was not competent for the defendant
to show that the plaintiff denied the
divinity of Christ and the doctrine of
642

DerraMatIon.

this;' or that he had copied the statements from another news-
paper.” But he cannot show that the defamatory matter appeared

simultaneously in other papers.’

his atonement, and said he was a
created being, a good man and per-
fect, his death that of a martyr, but
that there was no more virtue in his
blood than that of any creature.
Skinner ». Grant, 12 Vt. 456.

If the defendant justifies in an
action for words imputing perjury, he
must prove all the elements requisite
to establish the offense by competent
proof, as that the testimony was will-
fully false, was material, and before a
competent tribunal. Kirtley v. Deek,
38H. & M. (Va.) 288; Hicks ». Rising,
24 Tl. 566; Spruil v. Cooper, ante ;
McKinly v. Rob, 20 Johns. (N. Y.)
351; Gorman v. Sutton, 32 Penn. St.
247; Dwinells v. Aiken, 2 Tyler (Vt.),
75; Clark v. Dibble, 16 Wend. (N. Y.)
601. And it seems that the plea or
notice must embrace a notice that he
will prove that the plaintiff's evidence
was corruptly or willfully false. Mit-
chell v. Borden, 8 Wend. (N. Y.) 570.
The plaintiff set up that the defend-
ant charged him with stealing a ‘‘ pot
and waiter,’ a plea in justification
setting forth that he stole a ‘‘ waist-
coat pattern ” held, insufficient. East-
land v. Caldwell, 2 Bibb (Ky.), 21.
So where the plaintiff charged the
words ‘‘shut up your mouth, you
d—d whore,” the defendant justified
by setting up the fact that at the time
the words were spoken ‘‘the plaintiff
kept a whore-house.” Held, insuffi-
cient. Swartzel v. Dey, 3 Kans. 244.
Where the words charged were that
the defendant charged the plaintiff
‘with stealing his shingles, a plea in
‘justification charging him with selling
his (the defendant’s) shingles without
authority, but not setting forth facts
showing that the plaintifi’s acts were
felonious, was held bad. Shepard 2.
Merrill, 13 Johns. (N. Y.) 475. But
if the charge is general, as ‘‘A is in
the habit of stealing,” under a plea
justifying on the ground of the truth
of the charge, any instance of larceny

1 Bennett v. Bennett, 6 Carr. & P.
588.
? Mullett 2. Hulton, 4 Esp. 248;

And where the words profess to

by the plaintiff may be proved.
Adams v. Ward, 1 Stew. (Ala.) 42;
Talmadge 2. Baker, 22 Wis. 625. And
the justification must be as broad as
the charge, and proof that purt of the
matter is true is not sufficient. Stil-
well». Barter, 19 Wend. (N. Y.) 487;
State o. Burnham, 9 N. H. 34; Bur-
ford », Wible, 32 Penn. St. 95; San-
ford v. Gaddis, 18 Ill. 329. The jus-
tification must be full and complete,
and cover the entire charge embraced
in the words spoken. There can be
no half-way justification; unless it is
full to a certain intent, it completely
fails. Stilwell ». Barter, 19 Wend.
(N. Y.) 488; Andrews v. Van Duzer,
11 Johns. (N. Y.) 38; Self v. Gardner,
15 Mo. 480; Whitaker ». Carter, 4
Tred. (N. C.) 461; Talmadge o. Baker,
22 Wis. 624; Ridley v. Perry, 4 Shep.
(Me.) 21; Pallett 0. Sargent, 36 N. H.
496; Halton ». Muzzy, 30 Vt. 365,
Fidler v. Delevan, 20 Wend. (N. Y.)
57; Wachter ». Quenzer, 29 N. Y.
547; Lewis ». Black, 27 Miss. 425;
Gregory v. Atkins, 42 Vt. 237; Fero
v. Ruscoe, 4 N. Y. 165; Skinner ».
Grant, 12 Vt. 456. The truth may be
shown in defense to an indictment for
a libel, as well as in an action for
damages, but the justification must be
as broad as the charge. State o. Burn-
ham, 9 N. H. 34; Barthelemy o.
People, 2 Hill(N. Y.), 248; Com. o
Guild, Thacher’s Cr. Cas. (Mass.) 329;
Com. v. Bonner, 9 Metc. (Mass.) 410.
And it must be as definite as a plea,
although mere technical objections as
to form will not invalidate it if it is
sufficient in substance. Bissell 0. Cor-
nell, 24 Wend. (N. Y.) 354. And
proof that there were common reports,
or general suspicions that the plaintiff
was guilty of the charge, is of no avail
by way of justification. Wheeler v.
Shields, 3 Ill. 348; Young ». Bennett,
5 id. 43; Fisher v. Patterson, 14 Ohio,
418; Nelson v. Evans, 1 Dev. (N. C.)
9. Nor in mitigation. Peterson ».

Saunders v. Mills, 6 Bing. 218; Davis
». Cutbush, 1 F. & F, 487.
36 Bing. 218.
DEFAMATION.

643

be an account of what took place in a court of justice, although this
would be no defense unless the account is perfectly fair and accurate,
still, even though the report is not correct, if it isan honest one,

Morgan, 116 Mass. 350. If the plain-
tiff’s character is to be attacked, it
must be his general character, and not
special traits. Cont, J., in the last
case, supra, said upon this question,
‘The question of the plaintifi’s gen-
eral character was a question of fact
to be proved by the oaths of witnesses
who knew what her general reputation
was. If bad, it is a fact which rests
upon hearsay * * but still, it is an
independent fact. The plaintiff must
always come prepared to meet it, but
is not required to come prepared to
disprove particular false reports as to
which he can have no notice; or to
defend his reputation in detail. And
besides proof of false rumors alone
must of necessity be by hearsay evi-
dence in its most objectionable form,
such rumors do not necessarily con-
stitute general bad character. They
must fall very far short of it, and
while they do, they are clearly inad-
missible.” Alderman v. French, 1
Pick. (Mass.) 1; Watson v. Moore, 2
Cush. (Mass. ) 133; Bodwell . Swan, 3
Pick. (Mass.) 376; Kenney ». Mc-
Laughlin, 8 Gray (Mass.), 3; Gillis 2.
Peck, 20 Conn. 231. Justification
must be found in the truth of the
charge, and not in mere rumor, Stan-
ley v. Webb, 4 Sandf. (N. Y.) 21. And
evidence that the defendant had been
told what he charged, and that it was
amatter of common report is not a
justification; Hampton v. Wilson, 4
Dev. (N. C.)468; Moberly v. Preston,
ante ; Dame v. Kenney, 25 N. H. 318;
Lewis ». Niles, 1 Root (Conn.), 346;
Kennedy ». Gifford, 19 Wend.(N.
Y.) 296; Richardson v. Roberts, ante ;
Woodruff », Richardson, 20 Conn. 238;
nor that he believed the words to

be true; Hix » Drury, 5 Pick.
(Mass.) 296; or that he had
just grounds for believing it,

‘Woodruff ». Richardson, ante; nor is
it any defense that the defendant
merely spoke the words as a report;
Wheeler v. Shields, 2 Scam. (Ill.) 348;
and gave the author. Skinner v. Grant,
12 Vt. 456; Jones ». Chapman, 5
Blackf. (Md.) 88. But in some cases

it has been held that such facts may
be shown in mitigation. Anthony 2.
Stephens, 1 Mo. 254; Kennedy »v. Greg-
ory, 1 Binn. (Penn.) 85; Romayne 2».
Duane, 3 Wash. (U. 8.) 246; Calloway
2. Middleton, 2 A. K. Marsh. (Ky.) 372;
Leister v. Smith, 2 Root (Conn.), 24;
Young v. Slemons, Wright (Ohio), 124.
It is no justification, in an action of
slander, to show that the wife of plain-
tiff used the first harsh words, and
that the slanderous words resulted
from such previous harsh words.
Hosley v. Brooks, 20 Ill. 116. Where
the words are, ‘‘ Williams believes that
he stole his horse,” the defendant can-
not justify by showing that Williams
did so believe. He must show that
the plaintiff did in fact steal Williams’

horse. Thus, where the libel was
“The chief owners ”— meaning of a
mine — ‘‘ believe they have been out-

rageously swindled,” it was held that
the defendant could not justify with-
out proving that the owners had in
fact been swindled, and evidence of-
fered, to show that the chief owners
believed that they had been swindled,
was rejected. Wilson ». Fitch, 41 Cal.
363. But general reports and suspi-
cions of the truth of the charge may
in some cases be given in mitigation.
Springstein v. Field, Anth. (N. Y.)
252; Nelson vo. Evans, ante; Young v.
Slemons, Wright (Ohio), 124. Nothing
can be shown by way of justification
that goes merely in mitigation, or in
mitigation that only tends to justify.
Petrie v. Rose, 5 W. & 8. 364.

The plea must be sustained by proof
that satisfies the jury of the truth of
the charge, but the jury need not be
satisfied beyond a reasonable doubt; a
mere preponderance of evidence is
sufficient, substantially supporting the
plea. Spruil o. Cooper, 16 Ala. 791;
Wilson v. Nations, 5 Yerg. (Tenn.) 211 ;-
Snow 2». Witcher, 9 Ired. (N. C.) 346;
Kincade v. Bradshaw, 3 Hawks (N.
C.), 63; Abbut »v. Brandywine, ante;
Ellis ». Buzzell, 60 Me. 209; Hicks ».
Rising, 24 Ill. 566; Hook v. Hancock,
5 Munf. (Va.) 546. But contra, hold-
ing that the same proof, essential to
644

DeraMATIOoN.

and intended to be a fair account of what really occurred, this will

be ground for reducing the damages.

We have seen before, that

persisting in a plea of justification which is abandoned, or not

prove guilt of the crime, is required,
particularly where the crime charged
is perjury; Stinman v. McWilliams, 6
Penn. St. 170; Seely ». Blair, Wright
(Ohio), 683; Clark ». Dibble, 16 Wend.
(N. Y.) 601; Gorman »v. Sutton, 32
Penn. St. 247; Lanter 0. McEwen, 8
Blackf.(Ind.) 495; Dwinells ». Aikin,
2 Tyler (Vt.), 75; Woodbeck v. Keller,
6 Cow. (N. Y.) 118; Gants ». Vinard,
1 Ind. 476; Tucker o.Call, 45 Ind. 31;
the evidence must be as certain and
conclusive as would be required to se-
cure a conviction for the offense;
Wonderly v. Nokes, 8 Blackf. (Ind.)
589; if the charge is perjury, testimo-
nial perjury must be proved; Hicks 2.
Rising, 24 Ill. 566; and if the plaintiff
shows that he was honestly mistaken
in what he swore, the plea is not sus-
tained ; Hicks v. Rising, ante ; McKin-
ley v. Rob, ante; or that the words
related to immaterial evidence. Sibley
». Marsh, 7 Pick. (Mass.) 38. In an
action of slander where the words
charged are divisible without mate-
rially changing the sense, or constitute
two distinct slanders or charges against
the plaintiff, the defendant may justify
one and rely on the general issue in
the defense of the other. Nott v. Stod-
dard, 38 Vt. 25. So the plaintiff may
in his declaration, where the words
are ambiguous, allege the meaning of
the defendant in the language which
he used, and it is for the jury to find
the sense in which the words were
spoken. In such case it is not suffi-
cient for the defendant to justify the
very words, he must justify them in
the sense alleged in the declaration.
Id. In an action fora libel contained
in two letters published in the same
newspaper, the defendant pleaded, by
way of justification, that the second
letter (which in itself contained a dis-
tinct substantive libel), was a fair
comment upon the facts stated in the
first letter,and it was held bad. Walker
v. Brogden, 19 ©. B. (N.S.) 65. A
plea of justification may be withdrawn
at the pleasure of the pleader, and it

is error to refuse to permit him to
withdraw it. Fitzgerrel ». Furgeson,
25 Ill. 188. Inan action of slander, if
the defendant sets up the truth of the
words in justification, the burden is
upon him to establish it, and if the
jury have any doubts as to the fact,
they should find for the plaintiff.
Sperry v. Wilcox, 1 Metc. (Mass.) 267.
Where, in case for slander, the words
laid in the declaration charged that
the plaintiff committed an offense with
one person, evidence that he had com-
mitted a like offense with other per-
sons will not be received, either as a
defense or in mitigation of damages,
and evidence will not be received that
he had committed a different offense,
either with the same or with other
persons. Thus where the words laid
charged that the plaintiff had com-
mitted a rape on a particular person,
named in the declaration, evidence
will not be received that he had at-

tempted to commit a rape on the same,

and also on another person, either as a
defense or in mitigation of damages.
Id. Nor will evidence be received in
mitigation that the plaintiff had ad-
mitted and boasted that he had com-
mitted, with other persons, offenses of
a like character with that charged
upon him by the words laid in the
declaration. Where the defendant, to
an action on the case for slander, pleads
the general issue and a justification, he
may give evidence in mitigation of
damages under the general issue.
Queere, whether he may not when a
justification is pleaded alone. Pallet
v. Sargent, 36 N. H. 496. A publi-
cation that the prosecutor was charged
and proven guilty, by the affidavits of
some seven or eight of the most re-
spectable gentlemen of the county, of
both fraud and lying, is not justified
by the production of affidavits used be-
fore an ecclesiastical tribunal, upon a
charge preferred by the defendant
against the prosecutor; and when so
produced, it is competent for the pros-
ecutor to inquire what was the decis-

‘Smith o. Scott, 2C. & K. 580.
Drramation.

proved, may be ground for increasing the damages.

645
On the other

hand, facts which go to support such a plea may be given in evi-
dence in mitigation of damages, though they fail to prove the plea;

ion of that tribunal, Evidence that
the prosecutor, previous to the publi-
cation, had used violent, abusive, and
slanderous words concerning the de-
fendant, which had been communi-
cated to him about a month previous
to the publication, is not admissible in
mitigation of damages, it not appear-
ing that the defendant’s publication
was provoked by, or in any manner
connected with, the previous slander-
ous words of the prosecutor. Wit-
nesses will not be permitted the im-
pression and conviction, produced on
their minds, by the evidence given on
a trial, was different from its decision,
or of the opinions expressed by others,
as their decision and conviction upon
the same evidence, or of the impres-
sion and belief in the community,
whether the evidence established the
charges, is inadmissible, in mitigation
of damages.. The effect of such evi-
dence is to put the opinions of others
in the stead of the verdict of the jury
upon the same evidence. Graves 2.
State, 9 Ala.447. The defendant will
not be permitted to prove a justifica-
‘tion, under an answer merely denying
the allegations of the complaint, and
alleging that the words charged to
have been uttered and spoken by the
defendant concerning the plaintiff
were true. Thus where the alleged
slander consists in charging the plain-
tiff with having sworn falsely on a
trial, an answer setting up a justifica-
tion should set forth the evidence,and
state what was actually sworn to by the
plaintiff. Tilson v. Clark, 45 Barb. (N.
Y.) 178. A plea in justification must

admit the speaking of the words, or it-

is bad on demurrer; Davis v. Mat-
thews, 2 Ohio, 257; Anibal v. Hunter,
6 How. Pr. (N. Y.) 255; Sayles o.
Wooden, 6 id. 84; Porter ». McCreedy,
1 Code Rep. (N. Y.) 88; Folsom ».
Brawn, 25 N. H. 114; but if the slan-
der is divisible and contains two dis-
tinct charges, he may justify as to one,
and rely on the general issue as to the
other. Nott o. Stoddard, 38 Vt. 25.
So it seems that an answer that states
that the defendant has no recollection

of making the charge, ‘‘but if I did,
it is true,” is good. Buhler », Went-
worth, 17 Barb. (N. Y.) 649. Thus a
declaration for libel averred that, be-
fore and at the time of the committing
of the grievance by the defendant, the
defendant used the word ‘‘black-
sheep,” for the purpose of expressin,

and meaning, and it was understoo

by the persons to whom the libel was
addressed as expressing and meaning,
a person notorious by reason of bad
character, and of stained and sullied
reputation; yet the defendant, intend-
ing to cause it to be believed that the
plaintiff had conducted himself dis-
honestly and improperly, published of
and concerning the plaintiff the libel-
ous matter following : — ‘‘ Black-
sheep,” (meaning thereby that the
plaintiff was a black-sheep, in the sense
and meaning in which the word was
so used by the defendant). The decla-
ration then set forth a statement of
facts respecting the plaintiff; no part
was in itself libelous. The defendant
pleaded, as to the publishing of the
following part of the supposed libel;
that is to say, ‘‘ black-sheep,” that the
defendant did not use that word for
the purpose of expressing or meaning,
nor was it understood by the persons
in the declaration mentioned as ex-
pressing or meaning a person notori-
ous by reason of bad character, or of
stained and sullied reputation; con-
cluding to the country. Held, on
special demurrer, ist, that the plea was
well pleaded to that part only of the
libel; 2dly, that it was rightly pleaded
as to the publishing of that part of
the libel, and not to the inducement in
the declaration as to that part; and,
8dly, that it was not bad as amounting
to not guilty; the averment in the
declaration as to the word ‘‘black-
sheep,” being -properly matter of in-
ducement, which it was necessary to
traverse specially. M’Gregor v. Greg-
ory, 11 M. & W. 287. To a declara-
tion for words, imputing to the plain-
tiff, a pawnbroker, that he had com-
mitted the unfair and dishonorable
practice of ‘‘ duffing,” that is, of replen-
646

DeFaMaTION.

and that whether there is a plea of justification on the record or
not; and even where there has been such a plea, which has been

withdrawn.)

ishing or doing up goods, being on
his hands in a worn-out condition,
and pledging them with other pawn-
brokers, the defendant plead that “the
plaintiff did replenish and do up divers
goods being in his hands in a damaged
or worn-out condition and pledge them
with divers other pawnbrokers.” The
plea was held bad as not being suffi-
ciently specific. Hickinbotham ».
Leach, 10 M. & W. 361. * * * “Itisa
perfectly well-established rule,” said
Parke, B., ‘‘in cases of libel or
slander, that, where the charge is gen-
eral in its nature, the defendant in a
plea of justification must state some
specific instances of the misconduct
imputed to the plaintiff.”
». Stuart, 1 T. R. 748; Holmes ».
Catesby, 1 Taunt. 548; Newman v.
Bailey, 2 Chitty, 665. The justifica-
tion must set forth issuable facts. Id.;
Van Ness v. Hamilton, 19 Johns. (N.
Y.) 349. A repetition of a slander
already in circulation, without ex-
pressing any disbelief of it, or any
purpose of inquiring as to its truth,
though made without any design to
extend its circulation or credit, or to
cause the person to whom it is ad-
dressed to believe or suspect it to be
true, is actionable. Thus in an action
for slander, the only evidence was that
the defendant repeated a slander,
already in circulation, to one person,
who testified that she did not believe
it, or think any worse of the plaintiff
for having heard it. The jury were
instructed that if the defendant re-
peated the slander, conveying to any
extent the idea it was true, or that the
defendant believed it to be true, this
action would lie; but that it would be
otherwise, if the defendant repeated
the slander without any design to ex-
tend its circulation or credit, or to
cause the person to ‘whom it was
addressed to believe or suspect it to
be true. The jury returned a verdict
of a trifling amount for the plaintiff.
Held, that the plaintiff was entitled
to a new trial. Kenney ». McLaughlin,

J’Ansun .

‘defendant’s own house;

Where, however, such facts would, if pleaded, be a

5 Gray (Mass.), 8. Every person who
repeats a slander, unless upon a justi-
fiable occasion, is liable to an action
therefor; and such person cannot ex-
empt himself from damages in the
action by proving that when he re-
peated the slander, he gave the name
of the author of it. Cates v. Kellogg,
9 Ind. 506. So the person who origin-
ates the slander can only be liable for
the special damage occasioned by his
own communication of it. Cates 2.
Kellogg, 9 Ind. 506. The defendant
cannot show in defense that the plain-
tiff sustained no damage from the
slander. Calhoun v. M’Means, 1 N. &
M. (S. C.) 422; that he spoke the
words in jest, unless he shows that
they were so understood. Long ».
Eakle, 4 Md. 454; Hatch v. Potter,
7 Til. 725; or that he had probable
cause for speaking them; Grimes v.
Coyle, 6 B. Monr. (Ky.) 301; Park-
hurst v. Ketchum, 6 Allen (Mass.), 406 ;
or that they were spoken in the
Shaw 2.
Sweeney, 2 Gr. (Iowa) 587; that he
was drunk; Reed »v. Harper, 25 Iowa, ,
87; McKee v, Ingalls, 5 Ill. 30; or
that he spoke them as a report merely ;
Wheeler v. Shields, 2 Ill. 348; or that
he believed the words to be true and
had no malice toward or ill feeling for
the plaintiff; Gilmer ». Eubank, 13 Ill.
271; or that previous to the speaking
of the words the plaintiff had spoken
equally slanderous words of him.
Bourland v. Hidson, 8 Gratt. (Va.) 27;
provocation or passion only go in miti-
gation; Else ». Ferris, Anth. N. P.
(N. Y.) 36. The fact, that the slander
is only a repetition of a common report,
is no defense; every person who gives
currency’ thereto by repeating it is
equally as liable as the originator of
the slander. Evans v. Smith, 5 T. B.
Monr. (Ky.) 863.

It is no justification or excuse for a
libel published in a newspaper, that
the printer of the newspaper did not
personally know the person libeled.
He is bound not to do wrong to another,

1 Chalmers v. Shackell, 6C. & P. 475; East ». Chapman, 2 C. & P. 570.
DEFAMATION.

647

complete bar to the action, they cannot be adduced even in mitiga-

tion of damages.’

This was probably the ground of the decision in

Vessey v. Pike,? of which we have only a very meagre report, where

whether.personally known or unknown
to him, and to abstain from publica-
tions which he knows to be libelous,
with more than ordinary care, for the
wide circulation of his paper may in-
flict on the innocent an irreparable
injury. The publisher is equally re-
sponsible with the author of the libel;
Dexter v. Spear, 4 Mas. (U. 8.) 115;
or that he did not intend to villify the
plaintiff; Curtis » Mussey, 6 Gray
(Mass.), 261; or that he did not know
that it was libelous; Curtis v. Mussey,
ante ; or that he believed it to be true;
Campbell v. Spottiswoode, 3 B. & 8.
769; Moore v. Stevenson, 27 Conn.
14; otherwise, if he believed it to be
true, and acted from good motives and
under a sense of duty public or pri-
vate. Barthelemy v. People, 2 Hill
(N. Y.), 248. In Hotchkiss v. Porter,
30 Conn. 414, even under a statute
which provides that no recovery shall
be had unless malice is proved, it was
held that the provision that the plain-
tiff shall prove malice in fact was not
intended to prescribe any new rule as
to the kind and degree of malice to be
proved, or as to the evidence by which
the existence in fact of improper mo-
tives was to be shown, but only to
require that it should be shown by
other evidence than mere legal pre-
sumption from the fact of publication,
that the defendant’s motives were not
proper and justifiable. That the
motives of the defendant, in making
the publication, were improper and
unjustifiable, may be shown by the
character of the publication itself, and
by all the circumstances, and it is not
necessary for the plaintiff to prove any
actually hostile motive. Any con-
struction of the act which would make
it abridge, beyond this limit, the rights
of a ‘plaintiff in such a suit, would
bring it into conflict with the provis-
ion of the constitution, that ‘‘every
person, for an injury done him in his
person, property or reputation, shall
have remedy by due course of law,
and right and justice administered

1 Speck v. Phillips, 5 M. & W. 279.

without sale, denial or delay.” The
defendant published of the plaintiff
the following charge, in a newspaper,
over his own signature: ‘‘I hereby
charge Wales O. Hotchkiss with hav-

‘ing voted illegally at the election in

April, 1860, and I am prepared. to
substantiate the charge by legal proof.’
New Haven, September 16, 1860.” The
charge was admitted.to be untrue. In
a suit for the libel, claiming only gen-
eral damages, the defendant claimed
in defense that he was a registrar of
votes at the election referred to, that
it was suspected that illegal votes had
been cast, and that he was requested
by sundry respectable citizens to ascer-
tain whether it was so, and by whom
they were cast, that he suspected the
plaintiff, and upon information which
he obtained was led to believe that the
plaintiff was not a legal voter, and that
the writing was published for the pur-
pose of eliciting the truth; and that
the publication was without malice, or
political bias, or improper motive of
any kind. Held, that it was not
enough that the defendant believed
the truth of the charge. This, of
itself, gave him no right to make the
charge in the manner in which he did,
That it was not enough ‘that the de-
fendant entertained in fact no un-
friendly feelings toward the plaintiff, .
if his motives were not justifiable in
the eye of the law. That the pre-
tense that he made the publication for
the purpose of ‘‘ eliciting the truth,”
was upon its face absurd; the charge
being made in the most positive terms,
and with a declaration of readiness to
prove its truth. Neither is it any ex-
cuse that the matter was merely a repe-
tition of a common report, or even
that it had previously been published.
in other newspapers. Fry v. Bennett,
3 Bosw. (N. Y.) 235; State 0, Butman,-
15 La. Ann. 166; Cade v, Redditt, 15
id. 492. No man is at liberty to traffic
with the character of another, by pub-
lishing charges against him, calculated
to bring him into general contempt,

1

23C. &P. 512.
648

evidence of this nature was rejected.

DEFAMATION.

In no case can facts so

proved go in bar of the action, unless there is a plea to support

them.!

Sec. 672. That he had received previous provocation.

So evidence that the plaintiff had libeled the defendant, though

[*429]

no defense to the action will go in reduction of *damages.”
But such libels must be shown to relate to the subject-matter
of those published by the defendant.’

And he must prove that the

libel which he complains of came to his knowledge before he libeled

the plaintiff

and then to justify himself by stating
his authority, and proving the state-
ment to have been made by a third
person. Romayne v. Duane, 3 Wash.
©. C. (U. S.) 246. As to what is a
justification, and how it should be
pleaded, see Kerr v. Force, 3 Cranch’s
0.0.8. Inacivil action for dama-
ges, on account of libelous and _ slan-
derous words or matter, if a party is
instrumental in giving currency to a
report of such a nature, he cannot
screen himself by proof that there was
such a rumor or report, or that the
charges originated elsewhere. All
persons concerned in the publication
are guilty to the same extent. Cade
v. Redditt, 15 La. Ann. 492. A justi-
fication for a libel must be as broad as
the charge, and must relate to the
identical matter charged, and not to
some other distinct, but similar matter.
Stow v. Converse, 4 Conn. 17; Roberts
». Miller, 2 Greene (Iowa), 122; Brooks
». Bemiss, 8 Johns, (N. Y.) 455; Skin-
ner ». Powers, 1 Wend. (N. Y.) 451;
and proof of the truth of one of many
charges is not enough. Brooks 2.
Bemiss, ante ; Skinner v. Powers, ante.
The truth of the words is a complete
bar to the action. Perry v. Man, 1
R. I. 268; Rayne v. Taylor, 14 La.
Ann. 406. Upon the principle that
the truth can hurt no man, the truth
of the words charged is now admissi-
ble in defense of an action for slander,
and if the defense is sustained, is a

1 Charlton v, Watton, 6 C. & P. 385.

? Finnerty v. Tipper, 2 Camp. 76;
Kelly v. Sherlock, L. R., 1 Q. B. 686;
35 L. J. Q. B. 209; 7B. &&. 480.

full and complete bar to the action.
Van Ankin v. Westfall, 14 Johns. (N.
Y.) 233; Perry v. Man, 1 R. I. 263;
Bisbey v. Shaw, 12 N. Y. 67; Douge
v. Pierce, 13 Ala. 127; Wagner v.
Holbrunner, 7 Gill (Md.), 296; Sheahan
v. Collins, 20 Ill. 325; Treat 7. Brown- ,
ing, 4 Conn. 408; Smith v. Smith, 8
Tred. (N. C.) 29; Taylor »v. Robinson,
29 Me. 323; Bodwell v. Swan, 3 Pick.
(Mass.) 376; but must be specially
plead, or notice that it will be relied
on in defense given; Haws». Stanford,
4 Sneed (Tenn.), 520; and where the
charge is made in general terms, the
plea or notice of jnstification must
specify the facts relied on to establish
its truth, and this is so even in New
York under the Code. Ormsby 2.
Douglass, 5 Duer (N. Y.), 665; Fry 2.
Bennett, 5 Sandf. (N. Y.) 54. The
defendant may give in evidence previ-
ous publications by him, if they ex-
plain the libelous matter or soften its
character. Gould v. Weed, 12 Wend.
(N. Y.) 12; Brooks ». Bemiss, 8 Johns.
(N. Y.) 455. Certainty in a justifica-
tion for a libel is necessary. He must
justify the ‘substance of the publica-
tion, its character and its imputations,”
and if the innuendoes explain the
charge fairly, he must justify in the
sense in which they explain it, but
this does not. compel a justification as
to any forced construction. Ames v.
Hazard, 8 R. I. 143.

3 May v. Brown, 3B. & C. 113; Tar-
pley v. Blabey, 2 Bing. N. C. 487.
4 Watts o. Fraser, 7 Ad. & El. 223.
Derramation. 649

“Sec. 673. General bad character.

A very important question, which has been constantly raised, and
yet remains still undecided, is as to the admissibility, in mitigation of
damages, of evidence showing that defendant labored under a gen-
eral suspicion of being guilty of the offense charged in the libel.
The question is ably discussed in a recent work on evidence,! where
all the authorities are collected. The conclusion arrived at by the
learned author is, “ that the weight of evidence inclines slightly in
favor of the affirmative, even though the defendant has pleaded
truth as a justification, and has failed in establishing his plea.” In
a late case, however, the opinion of the court of queen’s bench
seemed on the whole against the evidence, and they decided that it
could only be received as to reports existing at the time of the pub-
lication, otherwise the reports adduced to diminish the damages
might have been caused by the very slander for which the action
was brought.2 Such evidence must, in any case, be confined to the
particular trait which is attacked by the libel, and cannot refer to
particular acts.° :

Sec. 674. Evidence of truth of libel.

Where there is a plea justifying a libel, it is no evidence in proof
of its truth that the same imputations had been published before,
and that the plaintiff had submitted to them. The fallacy lies in
the word “submission.” It comes to this only, that he did not prose-
cute; and there might be a great many reasons for his not proceed-
ing to prosecute, —the anonymous nature of the article, not know-
ing whether it came *from aman of character, or the poverty [#430]
of the party himself.‘

1Tayl. Evidence, 364, 6th ed.

? Thompson v. Nye, 16 Q.B. 175,

3 Tayl. Evidence, 316, 864, 6th ed,
In Ireland where the slander imputed
to an officer that he had stolen a gold
chain, evidence of the plaintifi’s being
generally reputed to have committed
the act was rejected; but evidence of
general bad character, or of his having
some vicious habit leading to the par-
ticular act, was considered admissible.
Bell v, Parke, 11 Ir. C. L. R. 413. See
further, Bracegirdle v. Bailey, 1 F. &
F. 536.

4Reg. v. Newman, 1 HE. & B. 268.

82

The precise offense charged must be
proved in order to amount to a justi-
fication. Thus, where the defendant
charged the plaintiff with having
committed sodomy with a man, it was
held that he could not justify by prov-
ing sodomy with a sow; Downs ».
Hawley, 112 Mass. 287; nor where
the charge is for stealing a horse can
evidence be admitted to show that he
stole a hog; Dellard ». Collins, 25
Gratt. (Va.) 348; nor where the charge

is that an unmarried woman has been |

delivered of twins, is evidence of ru-
mors charging her with fornication

.
650

DEFAMATION.

Sec. 675. Former recovery against a third party. Apology for libel in news-

paper.

Evidence of a mere collateral fact, as that the plaintiff had already
recovered against the proprietor of another paper for inserting the
same libel, cannot be given in mitigation of damages.’

admissible. Peterson v. Morgan, 116
Mass. 350; Strader o. Snyder, 67 IL
404. But while in this case the court
refused to permit evidence of the
plaintifi’s general bad character for
chastity to be admitted, yet, at the
very next term of the court, they held,
in Clark ». Brown, 116 Mass. 504, the
same judge (Devens) delivering the
opinion, that evidenoe of the plain-
tiff’s general bad character, as well as
his general bad character in reference
to the offense charged, was admissible
in mitigation. The distinction be-
tween the two cases lies in the fact
that in the first the offer was to show
tumors, while in the latter it was to
show a general special reputation in
reference to the class of offenses
charged, and with this distinction in
view there is no real conflict, and the
doctrine is really consistent with the
cwtent of modern authority both in
this country and England. McCabe».
Platter, 6 Blackf. Ind.) 405; Wright
» Schroeder, 2 Curtis (U. 8.), 548;
McNutt v0. Young, 8 Leigh (Va.), 542;
Sanders v. Johnson, 6 Blackf. (Ind.)
50; Regnier o. Cabot, 7 Ill. 34. An
allegation that a woman is a ‘‘ whore”
is not sustained by proof that he called
her a strumpet; Williams ». Bryant, 4
Ala. 44; Doherty v. Brown, 10 Gray
(Mass.), 250; nor an allegation of
words charging that the defendant
charged the plaintiff with having had
a child is not sustained by proving
_that he said that he believed her to be
pregnant with child —nor is a count
charging that the defendant charged
fornication on the part of the plaintiff
witnessed by one person sustained by
proof that he charged her with forni-
cation witnessed by another person, or
of words charging her with habitual
fornication; Payson ». Macomber, 3
Allen (Mass.), 69; nor are words al-
leged to have been spoken to the plain-

tiff sustained by proof of words
spoken to a third person. Wolf o.
Rodifer, 1 H. & J. (Md.) 409; Wil-
liams v. Harrison, 3 Mo. 411; Culbert-
son v. Stanley, 6 Blackf. (Ind.) 67;
Stees o. Kemble, 27 Penn. St. 112;
Miller v. Miller, 8 Johns. (N. Y.) 74.
But contra see Dailey v. Gaines, 1 Dana
(Ky.), 529; Huffman ». Shumate, 4
Bibb (Ky.), 515. An allegation that
the defendant charged the plaintiff
positively with a crime is not sustained
by proof that the defendant said he
‘* supposed ” the plaintiff to be guilty
of it, or he had no doubt he was guilty
of it. Dickey v. Andros, 32 Vt. 55;
Taylor v. Kneeland, 1 Doug. (Mich. )
67. An allegation that the defend-
ant said the plaintiff ‘‘is pregnant and
gone seven months with child ” is not
sustained by evidence that he said
‘*have you heard any thing about L’s
being pregnant by Dr. P—— ?” Long
». Fleming, 2 Miles (Penn.), 104.
Where the declaration charges words
imputing false swearing before the
register of the land office, proof of an
oath taken before a notary public rela-
tive to the same matter does not sup-
port the allegation. Phillips. Beene,
16 Ala. 720. Where the words coun-
ted upon are to the effect that the de-
fendant imputed misconduct to the
plaintiff as constable, proof of words
imputing misconduct to him as the
agent of the governor for the arrest
of a fugitive from justice does not
sustain the declaration. Kinney 2.
Nash, 3 N. Y. 177. In Wilson ».
Mitchell, 3H. & J. Ind.) 91, the words
charged were ‘‘that the defendant
made a voluntary affidavit that there
was a certain quantity of American
soap which to his certain knowledge
was sold at Curacoa by the plaintiff at
six dollars current money.” The proof
was, from the affidavit itself, that the
same words were used exeept that the

1Oreevy v. Carr, 7C. & P. 64.
DEFAMATION. ‘

651

Where in an action for a libel contained in a newspaper the de-
fendant pleads under 6 & 7 Vict., ch. 96, § 2, that the libel was
inserted without malice or gross negligence, and that a full apology

words ‘‘per box’? were used after the
words ‘‘six dollars.” The variance
was held to be fatal.

Where the words charged were ‘‘he
swore a lie, and it is in, for I (the de-
fendant) can prove he swore a point
blank lie,” and the words proved were
‘che swore off a just account and I can
prove it.” The variance was held to
be fatal; Berry v. Dryden, 7 Mo. 324;
so where the words charged were
‘there was a collusion between A., B.
and C.,” proof that the defendant said
there was a collusion between A.
and B. does not sustain the charge.
But see Nichols v. Hayes, 13 Conn. 155,
where the charge remains, although
the proof shows that another was
spoken of as committing it with him.
Nor the words ‘‘you would steal and
you will steal,” by words ‘‘aman that
would do that would steal.” Stees 2.
Kemble, 27 Penn. St. 112. Words,
alleged to have been spoken, are. not
supported by proof that the same
words were written, and vice versa ;
Hill v. Miles, 9 N. H. 9; nor words
alleged to have been spoken by the de-
fendant, by proof that he maliciously
procured another to speak them. Watts
v. Greenlee, 1 Dev. (N. C.) 210. Thus
it will be seen that any variance in any
measure changing the nature or charac-
ter of the charge is regarded as ma-
terial and fatal. But where the sub-
stance remains the same, immaterial
charges or variances are not regarded.
Smith v. Hollister, 32 Vt. 695; Hasley
v. Moss, 9 Ala. 266; Morgan », Living-
ston, 2 Rich. (8. C.) 578; Wilborn 2.
Odell, 29 Tl. 456; Creelman v. Marks,
7 Blackf. (Ind.) 281. The words proved
must leave the charge identical with
that alleged. If it varies it in the
slightest respect it is fatal. Hquiva-
lent words, not fully carrying out or
supporting the allegations, are not suf-
ficient. Coghill ». Chandler, 33 Mo.
115; Fox v. Vanderbeck, 5 Cow. (N.
Y.) 513; Moore v. Bond, 4 Blackf.
(Ind.) 458; Olmsted ». Miller, 1 Wend.
(N. Y.) 506; Merrill 0. Peaslee, 17 N.
H. 540; Norton ». Gordon, 16 Il. 38;
Miller v, Miller, ante ; Purcell v. Archer,

Peck. (Tenn.) 317; McClintock ».
Crick, 4 Iowa, 453; Skinner v. Grant,
12 Vt. 456; Pasley v. Kemp, 22 Mo.
409; Cheadle v. Buell, 6 Ohio, 67. To
illustrate what are regarded as sub-
stantive variances and what are not, it
will perhaps be well to refer to the
cases in which mere verbal variances
have been held not material, so that,
in connection with the cases previously
cited as to what are deemed substantive
variances, there can be little difficulty
in determining what are and what are
not material. Thus an allegation that
the defendant committed forgery is
supported by proof that A. and B.
committed it. Nichols v. Hayes, 13
Conn.155. So where the words charged
were ‘‘Poppenheim isa very bad man,
he isa calf thief and the records of
the court will prove it.” The words
proved were ‘‘Poppesheim is a very
bad man, he is a calf thief and has
been indicted for calf stealing, and
the records will prove it,” and it was
held that, as the charge was left iden-
tical in substance, the variance was
not material. Poppenheim v. Wilkes,
1 Strobh.(S. C.) 275. Where the words
charged were ‘‘she has had a bastard
child” and the words proved were “If
Ihave not been misinformed she has
a bastard child,” it was held an imma-
terial variance. Treat v. Browning, 4
Conn. 408. The words charged were
‘the girl that hired with us, etc.”
The words proved were ‘‘the girl that
lived with us, etc.” Held immaterial.
Robinett v. Ruby, 13 Md. 95. So
where in an action charging the plain-
tiff with perjury the colloquium stated
in the declaration set forth the trial of
an indictment for riot, and the record
produced was for a riot and assault.
The original charge of perjury still re-
maining and the identity of the. ju-
dicial proceeding not being charged,
held an immaterial variance. Hamil-
ton ». Langley, 1 McMull. (8. C.) 498;
Wiley ». Campbell, 5 T. B. Monr.
(Ky.) 560. So where words charged
affirmatively, are sustained by proof
that they were spoken in answer to a
question. Jones v. Chapman, 5 Blackf.
652

Deramation.

was inserted, and pays money into court by way of amends, if the
jury find the apology not sufficient, the damages should be assessed
irrespectively of the sum paid into court, and without considering
that payment in any way as an admission of liability.

(Ind.) 88. The words charged were
‘‘B. is in a family way and R. and his
wife took her to a Chicago doctor to
have the child worked off.” The
words proved were ‘‘she is in a family
way by R., etc.” Held immaterial.
Baker v. Young, 44 Ill. 42. So where
the words charged were ‘‘he stole two
hundred dollars from me when I was
drunk.” The words proved were ‘‘he

stole two hundred dollars from me,”
held an inmmaterial variance. Thus,
it will be seen that, where the variance
does not change the nature of the
charge in any respect, the omission or
addition of words are immaterial, but
if the omission or addition is material
as determining the nature or character
of the imputation, it is a fatal variance.
Skinner v. Grant, 12 Vt. 456.

1 Jones v. Mackie, L. R., 3 Ex. 1; 87 L. J. Ex. 1.
Breacu or Promise or Marriage. 653

CHAPTER XXXIII.

BREACH OF PROMISE OF MARRIAGE,

Sec. 676. Actions for breach of promise of marriage.
677. Evidence of defendant’s condition in life.
678. Aggravation by seduction.
679. Evidence in mitigation of damage.
680. When the action is barred .
681. Evidence of character, conduct, etc.

Sec. 676. Actions for breach of promise of marriage.

Actions for breach of promise of marriage ought strictly to have
been considered under the head of contracts, in an earlier part of
this work. They are, however, of so exceptional a nature, and so
closely connected with actions for seduction, as to the evidence
which may be adduced, that I have thought it more convenient to
defer the examination until now.

It is quite needless to say that no attempt at fixing any measure
of damage can be made in regard to this species of suit, or the other,
just alluded to, which follows it. They stand on a par with actions
for libel as to the range of topics in which the counsel are allowed
to indulge. Even the stereotyped direction of the judge, that the
jury should give “temperate” damages, conveys no very definite
idea to the mind.

Sec. 677. Evidence of defendant’s condition in life.

The circumstances which aggravate the damages in an action of
this sort are so obvious as to require no comment. One important
fact consists in the wealth and social position of the defendant, as it
shows what the plaintiff has lost by the breach of contract.'| Ac-
cordingly we find in one case, where the action was brought by the
gentleman against the lady, that 4002. was held not to be an excess-

1James v. Biddington, 6 C. & P. ant’s property, but not proof of par-
590; Berry ». DaCosta, L. R.,10C. P. ticular items. Kerfoot v. Marsden, 2

331-336; 35 L. J. OC. P. 191. General F. & F. 160, per Wixpe, B.
evidence may be given of the defend-
654 Breace oF Promise or Marriace.

431] ive amount of damages; the *fair one being, as the cold-

blooded reporter says, “worth 3,0007. when the plaintiff
courted, and afterward, by the death of her brother, worth double
that sum.”! And so a verdict of 3,500/. was supported in another
case, where the defendant was a man of property. *

Sec. 678. Aggravation by seduction.

Where the plaintiff had been seduced by the defendant, it was
held no misdirection to tell the jury that they might take into con-
sideration the plaintiffs lessened prospect of marrying another, and
the difference of her position in returning to her mother’s house,
not as a virtuous and respected member of the family, but as a dis-
graced woman. It is evident, however, that, unless a direction to a
jury to this effect is put, to use the expression of Wituzs, J., “in
the driest language,” * a jury will be apt to interpret it into permis-
sion to give damages for the seduction as well as for the breach of
promise of marriage.

Sec. 679. Evidence in mitigation of damage.

Any evidence will be admissible in reduction of damages, which
palliates, though it does not excuse, the breach of promise; or which
proves that the plaintiff had no great loss in the matter; or that
the match was in any way unsuitable, and unlikely to have pro-
duced happiness. And here it is necessary to distinguish between
facts which go to bar the action entirely, and those which merely
serve in mitigation of damages.

Sec. 680. When the action is barred.

It is a complete defense to the action, that the defendant was
induced to enter into or continue the connection by false representa-
tions, as to the circumstances of the family, or the previous life of

? Harrison v. Cage, Carth. 467.

* Wood v. Hurd, 2 Bing. N. C. 166.

Berry v. Da Costa, L. R., 1 C. P.
831; 35 L. J. C. P. 191; Green 2.
Spencer, 3 Mo. 818; Hill v. Maupin,
3 id. 823.

In an action for a breach of promise
to marry, brought by a woman, dam-
ages are computed on the principle of
indemnity, and not as vindictive.
Loss from the disappointment of rea-
sonable expectation, including the

money value of a marriage which
would have given a permanent home
and advantageous establishment, the
wounds and injury to the affections,
and the mortification and distress of
mind resulting from the defendant to
fulfill his promise, are all to be taken
into consideration in computing dam-
ages. Harrison », Swift, 13 Allen
(Mass.), 144,

4L, R.,1C. P., at p. 883. See
Smith v, Woodfine, 1 C. B. (N. 8.) 660
Breacn or Promise or Marriage. 655

the plaintiff, or even by a willful suppression of the real state of
affairs upon these points ;! or that at the time of making the prom-
ise he was ignorant of her previous immoral life,? even though she
had only been guilty of a single act of unchastity, and at a distance
of many years, and had since lived a perfectly correct life.’ So,
*where the plaintiff is a man, it will be a sufficient answer to [#439]
show that subsequently to her promise he had conducted
himself in a brutal manner, and threatened to use her ill, for this
gives her a right to say that she will not commit her happiness to
his keeping; or that he is a person of proved bad character.’ So
the existence of some bodily infirmity, to which the plaintiff is sub-
ject, which was not known at the time of the contract, will bea
complete bar.° But it has since been held in the exchequer chamber
that it is no defense that the defendant, after the promise, became
subject to a disease which rendered him incapable of marrying with-
out danger of his life.” And upon the authority of that case it was
held no defense that the plaintiff had been lunatic, which was not
known to the defendant at the time of the contract.*

Sec. 681. Evidence of character, conduct, etc.

On the other hand, unchaste conduct, known when the promise
was made, only operates in reduction of damages.’ So mere gross-
ness of manners, and want of feeling, are not grounds for breaking
off the contract, nor even palpable want of affection. But all such
circumstances are most important in testing the amount of injury
the plaintiff has sustained. The mutual suitability of the parties,
and the real affection felt by the plaintiff, may fairly be considered
by the jury, when a man complains of having lost the society of one
whom he appears never to have valued, and the pleasures of whose
society he was little calculated to taste.”

' Wharton v. Lewis, 1 C0. & P. 529; 5 Baddeley v. Mortlock, Holt’s N. P.
Foote o. Hayne, id. 546. Inthe ab- 151.

sence of fraud it is no defense that
the plaintiff was at the time of the
promise engaged to another man, and
concealed it from the defendant.
Beechey v. Brown, E. B. & E. 796;
29 L. J. Q. B. 105.

? Irving v. Greenwood, 1 C. & P. 350.

8 Bench ». Merrick, 1 ©. &K. 463,

4 Leeds v. Cook, 4 "Esp. 256.

6 Atchinson v, Baker, 2 Peake, 103.

‘Hall 0. Wright, E. B. & EH. 746;
29 L. J. Q. B. 48; decided by four
judges to three, the court below hav-
ing been equally divided.

§ Baker». ea 100. B. (N.8.)
124; 30 L. J. OC. P. 364.

® Bench 9. Merrick, 10&K. 468.

10 Per Lord ELLENBOROUGH, Leeds
v. Cook, 4 Esp. 257. :
656 Breacu or Promise or Marriace.

The bad character of a man, when it merely rests upon report,
without specific proof of facts, has been held to be mere evidence in
mitigation of damages, and not a complete bar.! In one instance,
however, Lord Kunyon allowed general evidence of the immodest
character of a woman to go in bar of the action. He said that in
such a case character was the only point in issue, and that was public
[*433] opinion, founded on *the character of the party. He there-

fore considered that what that public thought was evidence.”

* Baddeley v. Mortlock, ubi sup. * Foulkes v. Sellway, 3 Esp. 236.
SEpDucTION.

657

CHAPTER XXXIV.

SEDUCTION.

Sec. 682. Damages in seduction not confined to compensation for loss of

service.
683.
684.
685.
686.
687.

688. Seducing from service.

Rank an element, but not wealth.
Evidence of promise of marriage.
Evidence of general chastity.

Mitigation of damages, immodest conduct.
Negligence of the plaintiff.

Sec. 682. Damages in seduction not confined to compensation for loss of

service.

The action for seduction, properly so called, is rather an anoma-

lous one.

In form it purports to be merely an action for the con-

sequential damage arising from the loss of service, resulting from
the act complained of. Hence the action will fail unless some loss

of service can be shown.!

1 In the case of a minor, a right to
the service is sufficient; and when she
ceases to be under the control of a
real master, and intends to return to
her father’s house, she is construct-
ively in his service. Terry v. Hutch-
inson, L. R., 3 Q. B. 599; 387 L. J. Q.
B. 257.

However slight the act of service
may be, it must be a real genuine ser-
vice, such as the parent may command.
The making tea, or doing any house-
hold work at the command of the
parent is, however, quite sufficient to
constitute the relationship of master
and servant when the girl is residing
with her father and mother. Thomp-
son v. Ross, 5 H. & N. 16; 29 L. J.
Exch, 1; Evans v. Walton, supra.

The action is prima facie predicated
upon loss of service resulting there-
from, but really, and substantially, it
isan action to compensate parents for
the injury to their feelings, dignity,
and honor by the seduction of a
daughter. No recovery can be had,

83

And where the loss of service arose from

unless it can be shown that some ser-
vices have been performed for the par-
ent, but any, even the most trivial, ser-
vice is sufficient; Badgley ». Decker,
44 Barb. (N. Y.) 577; Ingerson 2.
Miller, 47 id. 47; Moran o. Dawes, 4
Cow. (N. Y.) 412; mere residence with
the parent, and rendering such gen-
eral services as a daughter generally
does, is enough; actual loss of ser-
vice need not be shown, nor need it
be shown that any actual loss pecu-
niarily has resulted; Lee v. Hodges, 13
Gratt. (Va.) 726; Hewitt v. Prime, 21
Wend. (N. Y.) 79; Moran v. Dawes,
ante ; Knight 0. Wilcox, 14.N. Y. 413;
it has been held enough that the
parent was entitled to her services;
Mulvehall v, Millward, 11 N. Y. 348;
Bartley v. Richtmyer, 4 id. 38; even
though at the time she was in the ser-
vice of another; Ingerson »v. Miller,
47 Barb. (N. Y.) 47; or of the de-
fendant; Stiles». Tilford, 10 Wend.
(N. Y.) 388; and even though the
parent had given her her time, and she
658

SEDUCTION.

the illness of the daughter, which was not caused by the seduction,
but by grief at being subsequently abandoned, the court doubted
whether the action could be maintained.! The logical result would

’ was, at the time of her seduction,
working for a third person, and had
her own wages, and the expenses of
her sickness were paid by her em-
ployer; Clark v. Fitch, 2 Wend. (N.
YY.) 459; and even though she was in
the employ of another, and did not
intend to return to her father’s house;
Martin v. Payne, 9 Johns. (N. Y.)
387; but in all cases he must
be entitled to her services, and
moust not have divested himself of the
right to command them, for if he
has apprenticed her; Clark v. Fitch,
ante; Bartley v. Richtmyer, 4 N. Y.
38; Briggs v. Evans, 5 Ired. (N. C.)
16; Ball o. Bruce, 21 Ill. 161; and
where the action is brought by one
who stands in loco parentis, actual ser-
vice and the relation of master and
servant at the time when the offense
was committed must be established ;
as: where the action was brought by
the stepfather; Bartley ». Richtmyer,
ante; by a brother; Millar v. Thomp-
son, 1 Wend. (N. Y.) 447; and any
one, guardian, master, or other person
standing in loco parentis at the time of
the seduction, if she was really his
servant; Ball ». Bruce, 21 Tl. 161;
Ellington v. Hillington, 47 Miss. 329;
so, where a daughter is over 21 years
of age, the relation of master and
servant at the time of the seduction
must be established, or there can be
no recovery. The fact that she was
seduced, and then returned to her
father’s house, is not enough; she
must have been his servant at the time
of her seduction; George v. Van Horn,
9 Barb. (N. Y.) 523; Nickleson 2.
Stryker, 10 Johns. (N. Y.) 115; Millar
». Thompson, ante; Vossel v. Cole,
10 Mo. 684; Doyle v. Jessup, 29 Ill.
460; Ball ». Bruce, 21 Ill. 161; but tif
she resides there and performs any
service, even though in return for her
board, itis enough; Lipe v. Eisenlerd,
82 N. Y. 229. In order to create a
right of action, mere seduction is
enough, if followed by loss of service
from any cause, even though neither

"Boyle v. Brandon,

pregnancy nor sexual disease tran-
spired; White v. Nellis, 31. N. Y. 405;
Abrahams ». Kidney, 104 Mass. 222;
and the action may be maintained even
though the seduction was accomplished
by force, and against the consent of
the daughter; Damon ». Moore, 5
Lans. (N. Y.) 454.

The fact that the girl is in the em-
ploy of another does not necessarily
prevent the parent from maintaining
an action. If he has a right to her ser-
vices when he sees fit to command
them, a recovery may be had. The
real test is, whether he has divested
himself of that right. Martin 2.
Payne, ante; Mulvehall ». Millward,
11 N. Y. 343; Stiles vo. Tilford, 10
Wend. (N. Y.) 338.

The action is personal, and where
the seduction took place in the life-
time of the father, neither his personal
representatives nor the mother can
maintain an action. The right of
action dies with the parent entitled to
bring it. George ». Van Horn, 9
Barb. (N. Y.) 523; and in such a case
the mother cannot maintain an action
even though she was subsequently
charged with the daughter’s mainte-
nance. Vossel v. Cole, 10 Mo. 634.

In action for seduction, the plaintiff
cannot prove, in aggravation of dam-
ages, that the seduction was effected
under a promise of marriage; Kniffen
». McConnell, 30 N. Y. 285; Hogan
o. Cregan, 6 Rob. (N. Y.) 188; Whit-
ney v. Elmer, 60 Barb. (N. Y.) 250;
Kip v. Berdan, 1 Spen. (N. J.) 239;
nor that the defendant procured an
abortion on her. Klopfer v. Bromme,
26 Wis. 372. The parent need not
wait, where pregnancy transpires,
until the birth of the child, but may
sue at once; Brigg v. Evans, 5 Ired.
(N. C.) 16; and any facts, the natural
consequences of the seduction, though
they did not happen until after suit
brought, may be shown in aggrava-
tion; Hewitt 0. Prime, 21 Wend. (N.
Y.) 79; but the plaintiff, while he
may show the standing and character

138 M. & W. 738.
SEDUCTION.

659

be, that damages could be given on no other ground. This is not

the case however.

It has been laid down, that actions of this sort

are brought for example’s sake, and although the plaintiff's loss may

of his family in aggravation, cannot
show his special characteristics, as
that he is a modest and retiring man;
nor can the defendant show such facts
in defense. McRae v. Lilly, 1 Ired.
(N. C.) 118. In an action for seduc-
tion of a daughter, the plaintiff may
show his own standing in society, and
his own pecuniary condition as well as
that of the defendant, in aggravation
of damages, and may recover not only
for loss of service, but for the wounded
honor and lacerated feelings of himself
and family, arising from the disgrace.
Grable v. Margrave, 3 Scam. (Ill.) 372;
Yundt ». Hartrunft, 41 Dl. 9. The
loss that the father sustains by the
seduction of his daughter depends, to
avery great extent, upon the value of
her previous character. Prima facie,
it is to be presumed that she was a
moral and virtuous girl at the time of
her seduction, and contributed to the
domestic happiness of her parents,
but it is competent to the defendant
to show that this was not the case, in
order to diminish the loss and reduce
the damages, and if evidence is given
to impeach the character of the girl;
it may be met and rebutted by evi-
dence, on the part of the plaintiff, of
her previous good character. The
defendant may call witnesses to prove
particular acts of sexual intercourse
between the plaintiff's daughter and
those witnesses prior to the period of
the seduction, either for the purpose
of reducing the damages; Verry ».
Watkins, 7 ©. & P. 308; or for the
purpose of showing that the defend-
ant is not the father of the child, and,
therefore, that his sexual intercourse
with the daughter did not occasion
the loss of service of which the plain-
tiff complains. Eager ». Grimwood,
1 Exch. 61; 16 L. Jour. (Exch.) 336.
It may be shown that the seduced
girl, prior to the seduction, was in the
habit of keeping loose company, or of
giving utterance to loose language and
immodest remarks. She may be asked,
for instance, whether she had not ad-
mitted that some person other than
the defendant was the father of her

child; but before witnesses can be
called to prove the nature of the lan-
guage, or of the remarks, she must be
pointedly and expressly asked, in her
cross-examination, whether she ever
used the particular language intended
to be given in evidence against her.

The character of the house where
she lived cannot be shown by general
reputation to be a bawdy house, nor
would the fact that it was such a house
necessarily affect the character of the
daughter for chastity. In order to
effect that, particular acts of unchast-
ity on her part must be proved. But
quere, if the action is by the parent,
would not such evidence be admissible
if he was shown to have known the
character of the house, or if he ought
to have known it, on the ground of
his negligence? Kniffen v. McConnell,
30 N. Y. 285; and in order to render
previous unchastity admissible in
mitigation, it must have been known
to the defendant at the time of the
seduction; Lea #. Henderson, 1 Cold.
(Tenn.) 146; and subsequent unchast-
ity cannot be shown; Mann », State,
34 Ga. 1.

So far as actual loss of service is
concerned, the previous unchaste
character of the daughter has no effect
in mitigation, nor so far as actual ex-
penses and trouble in taking care of
her, and if nothing more is claimed it
cannot be shown in mitigation, but,
when damages for wounded honor and
lacerated feelings are claimed, such
facts are admissible, not as a bar to
the action, but to mitigate or reduce
the damages; Fletcher ». Randall,
Anth, N. P. (N. Y.) 267; Akerley 0.
Haines, 2 Cai. (N. Y.) 292; Hogan v.
Cregan, 6 Rob. (N. Y.) 138; State
v, Shean, 32 Iowa, 88; State o. Suther-
land, 30 id. 570.

The fact that the defendant offered
to marry the daughter, but the plaintiff
refused his consent, cannot be shown
mm mitigation; Ingersoll ». Jones, 5
Barb. (N. Y.) 661; but previous un-
chastity may be shown in mitigation.

The action may be maintained by a
parent, even though the daughter is of
660

SEDUCTION.

not really amount to the value of twenty shillings, yet the jury do
right in giving liberal damages.!. And so Lord Expon said, “ In
point of form the action only purports to give a recompense for the

age; Tullidge ». Wade, 3 Wils. 18;
or is married even, if at the time of
her seduction she was living with her
father as his servant, and the seducer
cannot set up the husband’s rights in
bar of the action; Harper v. Luffkin,
7B. & C. 387; although in the latter
case the damages would doubtless be
restricted to the actual loss. But when
the action is brought strictly upon the
relation of master and servant,as where
a master brings suit, actual loss of ser-
vice must be proved as the immediate
consequence of the seduction, and the
damages are restricted to the actual
loss. Fores v. Wilson, ante. The
daughter or servant may be a witness,
and is not compelled, as has been pre-
viously stated, to answer whether she
has had intercourse with other men
before or at the time of her alleged
seduction; Hoffman ». Kemerer, 44
Penn. St. 452; Shattuck ». Myers, 13
Ind. 46; but this may be proved, if
the defendant knew the fact before
the alleged seduction; Lea ». Hender-
son, 1 Cold. (Tenn.) 146; and damages
beyond the actual loss is claimed.
Hill v. Wilson, 8 Blackf. Ind.) 123.
But if the suit is by a master, or by a
parent even, to the extent of the actual
loss, as loss of service, expenses, etc.,
such evidence is not admissible, and
does not go in mitigation even; Smith
v. Milburn, 17 Iowa, 30; but as far as
damages for wounded feelings, honor
and family pride are concerned, it is
quite proper to show that she had had
intercourse with other men prior to the
alleged act; Lea v. Henderson, ante ;
but not subsequent thereto. For a
betrayer of female virtue to be per-
mitted to show that the female whom
he, by his wiles, had tempted from the
paths of virtue, had subsequently be-
come a moral wreck, and consequently
that no damages should be recovered
from him on account of his conduct,
would be the very consummation of
impudence. Such evidence, instead
of going in mitigation, would fairly
go in aggravation. Lea ». Henderson,

ante. Neither can he be permitted to
show, even in a criminal case, that the
relation between them has been kept
up for years, for in such a case each
subsequent intercourse is treated as a
fresh seduction. Thompson v. Clen-
denning, 1 Head (Tenn.), 287.

The plaintiff cannot introduce evi-
dence of the daughter’s general good
standing in society, unless her charac-
ter in that respect is attacked; Wil-
liams ». Sproul, post; but he may
show his own social standing and

that of his family; Wilson 2.
Sproul, 3 Penn. 49; McAuley 2.
Birkhead, 13 Ired. (N. C.) 18;

and the financial condition of the de-
fendant. McAuley v. Birkhead, ante.
The defendant may show that the fe-
male is not the plaintiff’s servant;
Howland v. Howland, 114 Mass. 517;
Holloway v. Abell, 7 C. & P. 530; Ea-
ger v. Grimwood, 1 Exch. 61; that he
is not the father of her child; Rich-
ardson v. Fouts, 11 Ind. 466; and that
she had previously been seduced ; Da-
venport v. Russell, 5 Day (Conn.), 149;
and, in mitigation, that she had pre-
viously to her alleged seduction be-
haved immodestly toward him, and,
when this is done, the plaintiff may
show the daughter’s good character.
Bate v. Hill, 1 C. & P. 100; Smith ».
Milburn, 17 Iowa, 30. So be may
show the general moral character’ of
the plaintiff to be bad; but this must
be by evidence of his general reputa-
tion, and not of special acts. Thomp-
son v. Clendening, 1 Head (Tenn.), 287.
But he cannot be permitted to show
that the plaintiff is devoid of natural
sensibilities; Grider v. Dent, 22 Mo.
490; nor can he show that he himself
is a modest and retiring man; McRae
ov. Lilly, 1 Ired. (N. C.) 118; when the
defendant has shown, as he may do, if
he can, that the daughter had previ-
ously been seduced, no damages for
her seduction can be recovered, but
only actual damages. Hills vo. Wilson,
8 Blackf. (Ind.) 123.

But when seduction is established,

1 Per Wiumot, C. J., Tullidge ». Wade, 3 Wils. 18.
SEDUCTION. 661

loss of service, but we cannot shut our eyes to the fact, that this is
an action brought by the parent for an injury to her child. In such
a case I am of opinion that the jury may take into consideration all
that she can feel from the nature of the loss.) They may look on
her as losing the comfort, as well as the service of her daughter, in
whose virtue she can feel no consolation ; and as the parent of other
children, whose morals may be corrupted by her example.! And
not only the wounded feelings of the plaintiff, but also the dis-
honor resulting from the act, may form part of the estimate of dam-
ages.” ?

Sec. 683. Rank an element, but not wealth.

Damages ought to be governed by a due regard to the situation
in life of all the parties,’ because the high position of the parties
may be an aggravation of the wrong. But the *defendant’s [434%]
means are not an element in the case. Accordingly when
the plaintiff proposed to address interrogatories to the defendant as
to his wealth, the court refused to allow them to be put. Braox-
Burn, J., said, “The jury, no doubt, would give higher damages
against a rich man, and the defendant’s means do in general in some
way come out at the trial. That we cannot help. The true measure
of damages is the amount of compensation to be paid to the plain-
tiff for the injury he has sustained by the seduction of his daughter ;
and in an action of tort it should be immaterial, as Lord Mansrretp
said, whether the damage came out of a deep pocket or not.” *

Sec. 684. Evidence of promise of marriage.

The circumstances of premeditation or fraud, by which the act
was accomplished, will of course weigh heavily with the jury in as-

the jury may give a reasonable sum for
wounded feelings and family honor,
taking into account the social stand-
ing of the plaintiff and his family.
Knight ». Wilcox,ante ; Felkner v.
Scarlet, 29 Ind. 154; Torre », Summers,
2N. & McC. (8. C.) 267; Applegate
v. Ruble, 2 A. K. M. (Ky.) 128; Yundt

1 Bedford v; M’Kowl, 3 Esp. 119.

? Southernwood v. Ramsden, Selw.
N. P. 1127, 12th ed.; Andrews ».
Askey, 8 C. & P. 7. See Berry ».
Da Costa, ante, p. 654.

v.Hartrunft,41 01.10; Phillips o. Hoyle,
4 Gray (Mass.), 568.

The female has no interest in the
action, and cannot settle or release it,
and such arelease by her is not ad-
missible in mitigationeven. Sellars».
Kinder, 1 Head (Tenn.), 184; Gimbel
o. Smidth, 7 Ind. 627.

3 Andrews v. Askey, ubi sup.
4 Hodsoll ». Taylor, L. R:, 9 Q. B.
79,43 L. J. Q. B. 14.
662 SEDUCTION.

sessing damages. It has been said, however, that evidence cannot
be received that defendant effected his object by means of a promise
of marriage. Lord E:tensorovan said, “ You may ask her whether
he paid his addresses in an honorable way; to admit evidence of a
direct promise of marriage would be to allow the mother to recover
damages for a breach of that promise, upon the testimony of the
daughter.” 1 But the evidence has been received in several cases,
on the ground that otherwise it might appear to the jury that the
daughter was a wanton.? In one case the distinction was said to be
that such evidence could not be relied on, as a prominent part of
the case, for the purpose of obtaining specific damages, but that it
might be used collaterally to the main object of the action, with a
view to the vindication of the young woman’s character.’

Sec. 685. EXvidence of general chastity.

No evidence of general good character for chastity is admissible
in aggravation of damages, until an attempt has been made to prove
the contrary.’ It has even been laid down, that imputations cast
upon her good fame in cross-examination are not sufficient ground
to admit evidence in rebuttal.° The contrary rule has been laid
down in some later cases. In one, the cross-examination of the girl
[435%] went to show that she *had conducted herself immodestly

toward the defendant before the seduction, and kept im-
proper company. In the other, she was questioned as to her having
had criminal intercourse with other men. The plaintiff was allowed
to prove her general good character and modest deportment, and
the general respectability of the family.°

Sec. 686. Mitigation of damages, immodest conduct.

Evidence may be given, in reduction of damages, of the general
indelicacy and levity of character of the female seduced;’ and
specific instances of intercourse between her and other men may be
deposed to;° but the daughter herself cannot be questioned as to

‘Dodd ». Norris, 3 Camp. 519; 6 Bate v. Hill, 1 C. & P. 100; Mur-
Tullidge v. Wade, 3 Wils. 18. gatroyd ». Murgatroyd, 2 Stark. Ev.

? Watson ». Bayless; Murgatroyd 7. 307; Brown v. Goodwin, Ir. Cir. Rep.
Murgatroyd, 3 Stark. Ev. 990. 61.

3 Elliott », Nicklin, 5 Pri. 641. " Bamfield v. Massey; Dodd ». Nor-

4 Bamfield ». Massey, 1 Camp. 460. ris, wbi sup.

5 Dodd v. Norris, 3 Camp. 519. ® Verry v. Watkins, 7 C. & P. 808.
Sxpuction. 663

such acts.’ Any declarations made by herself, as, for instance, that
a third person was the father of the child ascribed to the defendant,
may however be proved, provided she has been given an opportunity
of explaining or denying them.’

Sec. 687. Negligence of the plaintiff.

Gross negligence on the part of the plaintiff may also be proved,
with the same view. In one case, where he had suffered the defend-
ant to continue his visits, as a suitor to his daughter, though he
knew him to be a married man, on an alleged probability of his
obtaining a divorce, and after he had been cautioned against him,
Lord Kenyon directed a nonsuit.*

Sec. 688. Seducing from service.

Damages for the mere seducing away of an actual servant from
the employment of the master, of course rests upon quite a different
basis. They would be regulated by the actual money loss resulting
from the act, unless where strong evidence of malice was shown.
In estimating the injury sustained, the jury are not limited to the
time during which the servant was bound to continue with his -
master. Where the workmen of a piano-maker were enticed away
from him, it appeared that they were engaged for no fixed time,
but worked by the *piece. His income from his trade was [436]
8007. per annum, and a verdict for 16007. was held not to be
excessive.”

No action will lie against the seducer of a servant, when the
master has recovered against the latter a stipulated penalty, agreed
on in case of his leaving the service.‘

?Dodd ov. Norris, ubi sup. But, 2 Carpenter v. Wall, 11 A. & E. 803.
from the analogy of the decisions in 3 Reddie v. Scoolt, 1 Peake, 240.
affiliation cases, it would seem that 4 Gunter v. Astor, 4 Moo. 12. The
such questions may be put, and even action lies for enticing away the plain-
evidence be given in contradiction, tiff’s daughter, though there may have
if it goes to show that some one been no binding contract of service;
else may have been the father of the Evans v. Walton, L. R., 2 0. P. 615;
child. Garbutt o. Simpson, 32 L. J. 386L.J3.C. P. 307.

M. C. 186: and see R. v. Gibbons, 31 5 Bird v, Randall, 3 Burr. 1346.
vid. 98.
664 Carmina, ConvERSATION.

CHAPTER XXXV.

CRIMINAL OONVERSATION.

Szc. 689. Adultery.
690. Grounds of damage in crim. con.
691. Separation between husband and wife.
692. Evidence of the terms upon which they lived.
698. Infidelity of husband.
694. Character of wife.
695. Husband himself to blame.
696. Defendant misled or solicited.
697. Evidence of defendant’s wealth.
698. Former recovery where there were several paramours.
699. Application of damage by court.

Sec. 689. Adultery.

By the act which established the present divorce court, 20 &
21 Vict., ch. 85, actions for criminal conversations were abolished.’
It is, however, by the same act provided that a husband ‘may in a
suit for dissolution of marriage, or for judicial separation, or in a
petition limited to such object only, claim damages from any person
on the ground of adultery with the petitioner’s wife; and the claim
is to be tried on the same principles, and subject to the same rules,
as actions for criminal conversation were previously tried and
decided in courts of common law. After the verdict the court has
power to direct in what manner the damages are to be applied, and
to direct the whole or a part to be settled for the benefit of the
children of the marriage, or for the maintenance of the wife.’

Sec. 690. Grounds of damage in crim. con,

The general principles upon which damages were given in crim.
con. were laid down with great clearness by an eminent judge. He
said, “The action lies in this case for the injury done to the hus-
band in alienating his wife’s affections, destroying the comfort had

18, 59. does not affect the discretion as to

3§. 33. See Comyn v. Comyn and costs given to the court by § 51; West

Humphreys, 32 L. J. P.M. & A. 210. ». West and Parker, L. R., 2 P.&D.
The insertion of a claim for damages 196; 40L. J.P. & M. 11.
CrmunaL ConvEnsATION. 665

from her company, and raising children for him to support and pro-
vide for; and as the injury is great, so the damages given are com-
monly very considerable. But they are properly increased or dimin-
ished by the particular circumstances of each case. The rank and
quality of the plaintiff; the condition of the defendant; his being
a friend, relation, or dependent of the plaintiff; or being a man of
substance; proof of the plaintiff and his wife having lived com-
fortably together before her *acquaintance with the defend- [#437]
ant, and her having always borne a good character till then ;
and proof of a settlement or provision for the children of the mar-
riage, are all proper circumstances of aggravation.”! It will only be
necessary to add a few words in elucidation of this summary.

As almost the whole foundation of this action consisted in the loss
of the wife’s society and affection, it was most important with a view
to damages, to ascertain what the extent of his loss was, and how
far it had been caused by the acts of the defendant.

Sec. 691. Separation between husband and wife.

Where the plaintiff had entirely given up the society of his wife,
he could not sue in respect of acts of adultery subsequent to the
separation ;* but it was different where, though separated, he had
still retained a right to the assistance of his wife, in the manage-
ment and care of his family.’ It was held, too, that even a complete
separation, if without deed, would be no bar to an action, since
there was nothing to prevent the plaintiff instituting a suit to regain
the society of his wife.“ Of course the same rule applied more
strongly where the separation was a mere matter of mutual con-
venience; as where the husband and wife were living in different
families.“ Such facts, however, would go strongly to reduce the
damages. So it was considered in one case, where the plaintiff had
married an actress, but concealed his marriage, and visited her very
seldom, she continuing to live with her mother, and pursue her pro-
fession. Trnpatt, C. J., said, “There appears in this case to have

1 Bull. N. P. 27. In Bell v. Bell no power to deal with the settlements
and Marquis of Anglesea, 29 L. J. P. under 22 & 23 Vict., ch. 61, § 5.

M. & A. 159, the jury were allowed to 2? Weedon ». Timbrell, 5 T. R. 360.
take the marriage settlement into con- 3 Chambers 2. Caulfield, 6 East, 244.
sideration in assessing the damages, 4 Graham vo. Wigley, per ABBOTT,

there being no children of the mar- OC. J., 2 Rop. Husb. & W. 323.
riage, and the court therefore having § ° Edwards »v. Crock, 4 Esp. 39.

84
666 CriminaL ConvERSATION.

been less of that intercourse between husband and wife, to compen-
sate for the loss of which suits of this nature are instituted, than I
have ever met with.”}
There is a curious case in which the husband had never known of
[#438] his wife’s infidelity till the eve of her death, when *she
herself disclosed it to him, and he then continued to treat her
kindly till she died. It was held that the action was maintainable.
Coxrriner, J., said, in charging the jury, “The only grounds on
which you ought to give damages to the plaintiff are, the shock
which has been given to his feelings, and the loss of the society of
his wife down to the time of her death.”?

Sec. 692. Evidence of the terms upon which they lived.

Another mode of testing the loss sustained by the husband was
to ascertain the amount of enjoyment he used to derive from the
society of his wife, and the terms upon which they lived with each
other. With this view, not only their conduct when they were
together, but even their letters were admissible, since the latter con-
stituted the only mode of proof when they were separated. Letters
were evidence for this purpose, even though written to a third party,
and containing other matter which would not be evidence.* But it
was necessary to show that the letters were written at the time they
bore date, and before suspicion was entertained of the wife’s mis-
conduct.‘ And their dates were not sufficient proof of the time they
were written.” Evidence might also be received of the wife’s com-
plaints as to her husband’s ill treatment of her, though not made in
his presence, as showing the manner in which the parties lived
together. That is made up of a number of acts of the two parties,
of which such complaints form a part.’

Sec. 693. Infidelity of husband.

Lord Kenyon, on two occasions, held that open infidelity on the
part of the husband went in bar of the action.". Lord ALVANLEY,
however, decided that it only went in mitigation of damages. “The

1 Calcraft v. Lord Harborough, 4 C. 4 Edwards v. Crock, 4 Esp. 39; Tre-
& P. 499. lawney v. Coleman, 1 B. & A. 90.
’ Wilton v. Webster, 7 C. & P. 198. 5 Houliston v0. Smyth, 2 C. & P. 24.
Willis ». Bernard, 8 Bing. 376. As 6 Winter». Wroot, 1 M. & Rob. 404.
to letters between husband and wife, "Sturt ». Marquis of Blandford;
see Stone v. Stone and Appleton, 84 Windham v. Wycombe, 4 Esp. 17.
L. J. P. M.& A. 33.
CrmiuAL CONVERSATION. 667

fact,” said his :ordship, “that the wife had been injured by the hus-
band’s misconduct could not warrant her in injuring him in that
way which was the keenest of all injuries.”* A discretionary power
is now given to the *court to pronounce a decree for dissolu-

‘ ; a2 : 1, _[*439]
tion of marriage where the petitioner has himself been guilty
of misconduct.”

Sec. 694, Character of wife.

The plaintiffs loss depended also, of course, on the previous
character of his wife. Accordingly evidence that the wife was liv-
ing as a prostitute, or that she had committed previous acts of mis-
conduct, before the adultery charged, and without the husband’s
privity, went in mitigation of damages. But acts of this sort,
committed subsequently, could not be used for this purpose, for
they might be the direct result of the degradation brought upon her
by the defendant.* This limitation must be appended to the words
of a learned judge, when he said: “With respect to damages, if
you are of opinion that the plaintiff's wife would be of no service,
but on the contrary:a disservice to. him and his children, a small
amount of damages will be sufiicient.” *

Sec. 695. Husband himself to blame.

Where the husband was himself, knowingly, the cause of his own
disgrace, no action at all lay.’ But evidence of mere carelessness,
and neglect of the husband, in not putting a stop to culpable famili-
arities went merely in reduction of damages, unless amounting to
connivance.” The plaintiff was entitled to recover unless he, had in
some degree been a party to his own dishonor, either by giving a
general license to his wife to conduct herself as she pleased with
men generally, or by assenting to the particular act of adultery with
the defendant, or by having totally and permanently given up all

"Bromley v. Wallace, 4 Esp. 287. 220 & 21 Vict., ch. 85, § 31. As to
A witness cannot be cross-examined as_ the exercise of the discretion, see La-
to any act of adultery, unless he orshe tour v. Latour and Weston, 31 L. J.
has already given evidence indisproof P. M. & A. 66; 2 Sw. & Tr. 524;
of it; 82 & 33 Vict., ch. 68, § 4; there- Goode ». Goode and Hamson, 30 L. J.
fore a husband petitioning for dissolu- P. M. & A. 105; 2Sw. & Tr. 253.
tion of marriage cannot, with a view 3 Smith v. Allison, Bull. N, P. 27.
to mitigation of damages, be asked ‘4Elsam v. Faucett, 2 Hsp. 562.
questions tending toshow that he had = ° Winter v, Henn, 4C, & P. 494.
been guilty of adultery in the life-time ‘Smith ». Allison, ubi sup.
of his first wife. Babbage v. Babbage =" Duberley v. Gunning, 4 T. R. 655.
and Manning, L. R., 2 P. & D. 222.
668 CrmiuvaL ConvERSATION.

the advantage to be-derived from her society.1_ And when conni-
vance was set up, the wife’s own statements were admissible, to
show what may have misled the husband in permitting that conduct

which led to the result.? So under *20 & 21 Vict., ch. 85, §
eo ene bg

30, if the petitioner has been an accessory to or has connived
at the adultery, the petition must be dismissed. Connivance has
been defined to be something more than mere negligence, inattention
or indifference. There must be an intention on his part that his
wife should commit adultery, or at any rate, a willing consent.’

Sec. 696. Defendant misled or solicited.

Even where there was no pretense of connivance on the part of
the plaintiff, damages were reduced by any thing which showed that
the defendant was led into the crime by circumstances not originat-
ing with himself. Therefore, in a case mentioned before, where the
woman was an actress, married privately, living apart from her hus- -
band, in the pursuit of her profession, Tovpat, C. J., said: “You
may consider, in estimating the damages, how far the plaintiff inter-
fered to protect his wife from the temptations to which, by her pro-
fession, she was exposed. You may also consider whether the de-
fendant knew that she was a married woman, or might conclude that
she was still single, and attending as an actress at the theatre.” *
And so the fact that the defendant was first solicited by the wife
had the same effect.*

Sec. 697. Evidence of defendant’s wealth.

We have seen that the defendant’s condition, and his being a man
of substance, were relied on by Buiter, J., as matters which
properly enhanced the damages.’ In one case, however, ALDERSON,
B., refused to admit evidence of the amount of the defendant’s
property. He said that in actions of this kind, a plaintiff is entitled
to as much damage as a jury shall think is a compensation for the
injury he has sustained, and the amount of the defendant’s property
is not a question in the cause.” And this rule has been followed in

1 Winter v. Henn, wbi sup., per ALDER- v. Adams and Colter, L. R.,1 P. & D.
son, B. 333.
2 Hoare v. Allen, 3 Esp. 276. 4 Calcraft v. Lord Harborough, 4 C.
3 Allen ». Allen, 2 Sw. & Tr. 108, & P. 499.
n. 1; Marris v. Marris, id. 530; 5 Elsam v, Faucett, 2 Esp. 562.
31 L. J. P. M. & A. 69; Ellyatt o. § Ante, 664.
Ellyatt, Taylor and Halse, 3 Sw. & Tr. "James v. Biddington, 6 C. & P.
504; 33 L. J. P. M. & A.137; Adams 590.
CriminaL ConvERSATION. €69

the divorce court. Sir C. Cresswetu said: “The jury had to say
what was the value to the husband of that which he had lost through
the instrumentality of the co-respondent. It was not a question
what the co-respondent was worth, because if he could not pay in
purse he must pay in person. But if aman made use *of #441]
his wealth in order to corrupt a woman, the jury might con-
clude she was not easily corrupted, and was therefore of more value
to her husband.” ?

Sec. 698. Former recovery where there were several paramours,

A former recovery against one defendant for adultery was no
bar to an action against another defendant, for a similar injury
during the same time,’ for each might have inflicted a very different
degree of wrong upon the plaintiff. Accordingly, upon a trial, in
which the defendant was the plaintiff's own coachman, and where
there was evidence that the wife had been-criminally connected with
others also, Lord Extenporover directed the jury to award dam-
ages, proportioned barely to so much of the plaintiffs loss of
comfort as the defendant’s misconduct might be supposed to have
occasioned ; but not to the whole of the injury the plaintiff had
suffered, which there seemed reason to suspect might be attributed
to others in a superior condition of life, much more than to the so-
licited coachman.*

Sec. 699. Application of damages by court.

In directing in what manner the damages should be applied, the
court for divorce and matrimonial causes has most usually allowed
the petitioner his costs which have not been taxed against the co-
respondent. With the residue, provision has been made for the
maintenance of the wife (dum casta vixerit), and children by pur-
chasing annuities for them or by investing the amount, the wife
taking the interest, and the principal sum passing to the children at
her death. It has been ruled in the same court that if the co-re-

1 Forster 0.Forster,33 L. J. P. M. & Hesketh, 33 id. 132; Billingay ». Bil-
A. 150 n.; Cowing v. Cowing, id. 149. lingay and Thomas, 35 L. J. P. M. 84;

2 Gregson 0. M’Taggart, 1 Camp. Callwell », Callwell and Kennedy, 3
415. Sw. & Tr. 259; Forster v. Forster and
3Gregson v. Theaker, 1 Camp. 415, Berridge, 3 S. & T. 158; 8S. C., 4 id.
A 131; 34 L. J. P.M. & A. 88. In Tay-
4See Latham v. Latham and Gethin, lor v. Taylor and Wolters, 39 L. J. P.
80 L.J.P.M. & A. 43; Clarke», Clarke, & M. 23, nothing was given to the
81 id. 61; Narracott v. Narracott and wife. And where there had been no

n
670 CrimmnaL ConvERsATION.

‘Spondent does not appear, the jury are bound to take for granted
that he committed the adultery. Therefore even when they found
that the respondent had not committed adultery with the co-re-
[449] spondent they were directed *to assess the damages at a
“ nominal sum against the latter. If the co-respondent ap-
pears but does not file an answer, he cannot cross-examine witnesses
or address the jury in mitigation of damages, but after decree he
may re-call and cross-examine witnesses and address the court upon
the question of costs, as for example by showing that the co-re-
spondent did not know the respondent to be a married woman.”
issue of the marriage, and therespond- to be paid to the petitioner. Evans».

ent was living with the co-respond- Evans and Bird, L. R., 1 P. & D. 36
ent, the court directed the damages é

+ Stone v. Stone and Appleton, 34 as against the co-respondent. Id.; 3
L, J. P. M. & A. 40,n. Andevidence Sw. & Tr. 608.

is admissible to aggravate the damages 2 Lyne v. Lyne and Blackney, 37 L.
J.P. M. A. 9.
Src. 700.
701.
702.
703.

704.
705.
706.
707.
708.
709.
710.
711.
712.
713.
714.
715.
716.
717.
718.
719.
720.
721.
722.
723.
724.
725.
726.
7217.
728.
729.

Actions By Exxcutors. 671

*CHAPTER XXXVI. [#443]

ACTIONS BY AND AGAINST EXECUTORS.

When executors may sue.

When executor cannot sue.

Principle of damages.

Additional rights of action given by 4 Ed. III, ch. 7; 3&4 Wm
IV, ch. 42; 9 & 10 Vict., ch. 93.

Damages limited to pecuniary loss.

Principles on which pecuniary loss is to be calculated.

Deduction on account of insurance.

Damages not limited to income legally secured.

No action unless deceased could have sued.

On whose behalf.

Actions against an executor. New procedure.

When executor must be sued as such.

When executor not liable.

Actions of tort. 3&4 Wm. IV, ch. 42.

Vindictive damages not allowable against an executor.

Actions against executors for dilapidations.

Contracts made with executors as such.

Actions against executors personally.

Contracts made by him.

Trading.

Effect of a submission to arbitration.

Liability of executor for funeral expenses.

Use and occupation.

Actions for rent due since the death of the testator.

Where the term has been assigned.

How the profit accruing from the land is to be estimated.

Covenant to repair.

Effect of a devastavit at law; in equity.

Proper mode of pleading by an executor.

Judgment against him,

Sec. 700. When executors may sue.

I propose to conclude the portion of this work which treats of i
the measure of damages, by examining some cases in which the
parties stand in a peculiar relation to each other, which affects their
672 Actions By Exxcurtors.

right to sue, and the amount they may recover. Such a relationship
exists in the case of actions by trustees in bankruptcy, and by and
against executors. In all these, the damages which can be obtained
may be modified, more or less, by the fact that the party to the suit
is not the person originally entitled to sue or be sued, but one placed
in that position by law. So far as they are not modified in this
manner, they come under the ordinary rules laid down previously.
Damages in actions by a principal against his agent are in general
exactly the same as they would be where the parties were uncon-
nected with each other. The case, however, admits of some
remarks peculiar to itself, for which this chapter seems to present
the most proper place.

It would be impossible, without wandering from the strict object
of the present treatise, to state the cases in which actions will lie
by and against executors. The subject has been so exhausted and
discussed in well-known works upon the subject, that it would be
waste of time to enter upon it here at any length. The broad
principle upon which actions by executors resis is, that they must
be brought in respect of some wrong which affects the personal
e444] estate of the deceased. Uence an *executor may sue an

attorney for negligence in investigating the title of an estate,
about to be conveyed to the testator, by means of which he took a
bad title, and was unable to sell the property. And the court
remarked, that if a man contracted for a safe passage in a coach, and
sustained an injury by a fall, by which his means of improving his
personal property were destroyed, and that property in consequence
injured, the executor might sue in assumpsit for the consequences of
the breach of contract.’ Accordingly, quite recently, where a pas-
senger injured on a railway died after an interval, his executrix was
held entitled to recover in an action of contract the damages to his
personal estate, arising in his lifetime from medical expenses and
loss occasioned by his inability to attend to business.* And so the
executor may sue for a breach of a contract to complete the sale of

'See Wms. Exors. 785, 1721, 7th 8 Bradshaw »v. Lancashire and York-
ed.; 1 Wms. Saund. 216, a.;1 Wms. shire Ry. Co, L. R., 10 C. P. 189;
Notes to Saund. 239. 44 L. J. C. P. 148. And see Potter.

? Knights v. Quarles, 2 B. & B.102; Metropolitan District Ry. Co., 3 L. T.
And see per Wituzs, J.,in Alton v (N.S.) 765.

Midland Ry. Co., 19 C. B. (N. 5S.) 242;
34L. J. C. P. 298.
Actions sy Exrourors 673

land, whereby the deceased lost the benefit of the purchase, and was
put to expense in endeavoring to procure the title, and was deprived
of the use of his money deposited.! Nor is it necessary to prove
actual and specific damage, provided the breach of contract might
possibly have caused such damage. Therefore, the executor may
sue for breach of covenant not to fell or lop timber-trees, committed
during the life of the testator, though none of the timber was
removed by the defendant.* And so upon a covenant to repair,
broken before the death of the covenantee.’ In such a case, though
the covenant relates in terms to the realty, a breach of it is a direct
injury to the personal estate; and this is the sort of injury which is
primarily contemplated by it. But it is different where the primary
object of the covenant is to preserve the real estate in specie.
There the heir, and not the executor, is the person to sue even for a
breach in the life-time of the testator, unless some consequential
damage to the personalty has ensued. So it was held, where the
actions were for breach of covenant *for title and right to
convey, and for further assurance.‘ Lord ELLensoroves, C.
J., said,® “In this case there is no other damage than such as arises
from a breach of the defendant’s covenant that he had a good title,
and there is a difficulty in admitting that the executor can recover
at all without also allowing him to recover to the full amount of the
damages for such defect of title; and in that case a recovery by him
could bar the heir, for I apprehend the heir could not afterward
maintain an action for the same breach. Had the breach been
assigned specially with a view to compensation for a damage sus-
tained in the life-time of the testator, and so as to have left a sub-
ject of suit entire to the heir, this action might have gone clear of
the difficulty.” And on this ground the case was distinguished
from that of Lucy v. Levington,’ because there an eviction had
taken place in the life-time of the testator; and, therefore, the
damages in respect of such eviction, for which the action was
brought, were properly the subject of suit and recovery by the
executor, and nothing descended to the heir.

[*445]

1 Orme v. Broughton, 10 Bing. 533. 4 Kingdon ov. Nottle, 1M. & 8. 355;
> Raymond ». Fitch,2C. M. & R. King o. Jones, 5 Taunt. 418;4 M. &

588. 8. 188, affirmed on error.
3 Ricketts ». Weaver, 12 M. & W. 31M. G&S. 363.
718, 6 2 Lev. 26.

85
674 Actions AGAINST EXECUTORS.

Sec. 701. When executor cannot sue.

In no case can an action be maintained, where it appears upon
the face of the record that no damage to the personal estate could
have arisen. Hence an executor cannot sue for breach of promise
of marriage to the testator, unless special damage is shown. Execu-
tors are the representatives of the temporal property, that is, the
debts and goods of the deceased, but not of their wrongs, except
where those wrongs operate to the temporal injury of their personal
estate. If such an action were maintainable, then every action
founded on an implied promise to the testator, where the damage
consists in the previous personal suffering of the testator, would be
also maintainable by the executor. All injuries affecting the life
or health of the deceased ; all such as arise out of the unskillfulness
of medical practitioners; the imprisonment of the party brought on
by the negligence of his attorney ; all these would be breaches of
the implied promise by the person employed to exhibit a proper
[#446] portion of skill and attention. We are not aware, *however,

of any attempt on the part of the executor to maintain an
action in any such case. Where the damage done to the personal
estate can be stated on the record, that involves a different question.
Loss of marriage may, under circumstances, occasion a strictly pecun-
iary loss to a woman, but it does not necessarily do so; and unless
it be expressly stated on the record, the court will not intend it.’

Sec. 702. Principle of damages.

Since then no action can be brought except in respect of injury
to the personal estate, it follows that where an action is brought
damages can only be recovered on account of such injury. Ac-
cordingly in an action for distraining on the testator’s goods, when
no rent was due, and forcing him to pay 90. 13s. to have the distress
withdrawn, it was held that damages must be limited to the amount
so paid.”

Sec. 703. Additional rights of action given by 4 Ed. III, ch. 7; 3 & 4 Wm.
IV, ch. 42;9 & 10 Vict. ch. 93.

Actions on a contract made with the deceased, or for a debt due
to him, were always maintainable by the executor. But it was a

1 Per Lord ELLenporoves, C. J., ? Lockier ». Paterson, 1 C. & K.

Chamberlain ». Williamson, 2M. & 8. 271.
408, 415.
Actions acainst ExEcutors. 675

principle of common law, that if an injury was done either to the
person or property of another, for which damages only could be re-
covered in satisfaction, the action died with the person to whom, or
by whom the wrong was done. Three remarkable changes in this
rule have been made. Stat. 4 Edw. ITI, ch. 7, enacts, that where
any trespass has been done to the testators, as of the goods and
chattels of the said testators carried away in their life, the executors
in such cases shall have an action against the trespassers, and re-
cover their damages in like manner as they whose executors they
be should have had if they were living. By an equitable construc-
tion of this statute, an executor or administrator shall now have the
same actions for any injury done to the personal estate of his testa-
tor in his life-time, whereby it is become less beneficial to the exec-
utor, as the testator himself might have had, whatever the form of
the action may be.”

By stat. 3 &4 Wm. IV, ch. 42, § 2, fie executors or administra-
ters may sue for any injury committed in the life-time of *the 8447]
deceased to his real estate, so as such injury shall have been
committed within six calendar months before the death, and pro-
vided the action is brought within one year after it. Even inde-
pendently of this statute, however, where the defendant has severed
part of the freehold, as trees, grass, or corn, and then carried it
away, although the executor could not sue for the act of severance,
he might sue for the taking of the severed chattel, by virtue of the
stat. of Kdw. III.* This mode would in many cases evade the limi-
tation imposed by the latter act. .

Stat. 9 and 10 Vict., ch. 93, gives the executor or administrator
of any person whose death has been caused by the wrongful act,
neglect, or default of any other person, an action to recover dam-
ages in respect thereof, when the act is such as would (if death had
not ensued) have entitled the party injured to sue. The action is
to be for the benefit of the wife, husband, parent, and child of the
deceased.* And the jury may give such damage as they may think

’ Wms. Exors. 789, 7th ed.

21 Wms. Saund. "217, b.; 1 Wms.
Notes to Saund. 244. ’ The remedy
given by this statute has been held to
include administrators, and by 25
Edw. III, ch. 5, was extended to ex-
ecutors of an executor, Id.

2 Wms. Exors. 790, 7th ed.; Wil-
liams v. Breedon, 1 B. & P. 330.

+See the interpretation clause, and
Dickinson v. N. E. Ry. Co., 2 H. &
C. 735. By 27 and 28 Vict., ch. 95,
§ 1, if there is no executor or admin-
istrator, or no action is brought within
six months, the persons beneficially
interested in the result of the action
may sue.
676 AcTIONS AGAINST EXECUTORS.

proportioned to the injury resulting from such death to the parties
for whose benefit it is brought, and are to divide it among them by
their verdict. :

Sec. 704. Damages limited to pecuniary loss.

In assessing damages under this act, the jury are confined to the
pecuniary loss sustained by the family, and cannot take into consid-
eration the mental suffering of the survivors. This rule was laid
down after much consideration in a comparatively recent case. The
deceased who was thirty-four, had an income, as a merchant, of 8507.
per annum, which, according to the probable duration of his life, cal-
culated by the government annuity tables, amounted to 13,1882. of
which the widow would have the joint enjoyment during his life.
On the other hand, by his death she became at once entitled to
7,0002., leaving a balance of 6,1887. The judge directed the jury
to consider as to the pecuniary loss, how much of her husband’s
income a wife living with him, and maintained according to her
station in life, might be supposed to enjoy. He further told them,
[448] that if they considered the plaintiff *entitled to any com-

pensation for the bereavement she had sustained, beyond
the pecuniary loss, they might allow for it. They gave a verdict
for 4,0002. A new trial was granted, on the ground of misdirec-
tion in allowing the jury to take the mental suffering of the plain-
tiff into their estimate, and because the damages were excessive
supposing this element to be excluded.’ In a former ,case, the
deceased was a laborer aged thirty-three, and earning 1/. a week.
Parxg, B., directed the jury not to consider the value of his exist-
ence as if they were bargaining with an annuity office, in which case
they would have to take all possible accidents into account, but to
give what they considered a reasonable compensation. They gave
1002.”

Sec. 705. Principles on which pecuniary loss is to be calculated.

The mode of calculating damages under this act was much con-
sidered in the case of Rowley v. London and North Western Rail-
way Co.’ There one of the persons, on whose behalf damages

1 Blake v. Midland Ry. Co., 18 Q. B. 7L. R., 8 Hx. 221; 42 L. J. Ex,
93; 21 L. J. Q. B. 233. 153.

? Armeworth ». S. E. Ry. Co., 11
Jur. 758.
Actions against ExxcuTors. 677

were claimed, was the mother of the deceased. ' She was at the
time of the death sixty-one, and her son was forty. He was a pro-
fessional man, and was bound by a personal covenant to allow her
an annuity of 2002. during their joint lives. The judge directed
the jury that they might allow her such a sum as would purchase an
annuity of 200. a year, for a person sixty-one years of age, according
to the average duration of human life. The elements placed before
the jury for determining this sum were certain tables used by in-
surance companies, showing the average duration of life, and a cal-
culation of the value of such an annuity on government or other
very good security. Brerr, J., held that the whole of the evidence
upon this point was inadmissible, inasmuch as it placed before the
jury a wrong standard of damages. He said, “To the best of my
belief, the invariable direction to juries, from the time of the cases
I have cited! until now, has been, ‘that they must not attempt to
give damages to the full amount of a perfect compensation for the
pecuniary injury, but must take a reasonable view of the case, and
give what they consider, under all the circumstances, a fair com-
pensation.” * * * I *have a clear conviction that any ver- [449]
dict founded on the idea of giving damages to the utmost
amount for the pecuniary injury, would be unjust.” The other
judges considered that the general principle of fixing as damages ,
such a sum as would put the mother in the same pecuniary position
as if her son had not met with the accident, was a sound one. It
was admitted on all hands that there was an error in calculating the
annuity upon the probable duration of the mother’s life, since this
overlooked the contingency that the son might have died before
her. It was also held that an annuity secured only by the personal
covenant of a professional man, must, in the absence of evidence to
the contrary, be of less value than an annuity payable by govern-
ment; and that in this respect also there was an over-valuation. It
was further held that the probable duration of the mother’s life
must be calculated with reference to the circumstances of the par-
ticular life in question, making allowance for any defect in health
and the like. But that if such special circumstances existed, it
was the duty of the party who relied upon them, as diminishing

! Blake v. Midland Ry. Co.; Armsworth». 8. E. Ry.Co., ubt sup.
678 Actions acarnst Exrcurors.

the value of the life, to establish their existence, and that, in the ab-
sence of such evidence, the jury might properly be directed to con-
sider the life as an average life, and to value it according to tables
of average duration.

Sec. 706. Deduction on account of insurance,

Money received from an insurance company upon the death of
the relative must be deducted from the amount of the compensa-
sation awarded under Lord Campsety’s Act. In this respect there
is a difference between an action brought by the sufferer himself,
and one brought on behalf of his family. In the latter case the pecu-
niary loss caused by the death is at once the basis of the action and
the measure of the damages ; consequently, whatever comes into
possession of the family by reason of the death, whether by inherit-
ance, insurance, or otherwise, must be taken into account. In the
former case the ground of the action is the wrong done to the in-
dividual. The fact that he has guarded by anticipation against such
an event, neither diminishes the wrong itself, nor the liability of
the wrong-doer to pay for it.*

Sec. 707. Damages not limited to income legally secured.

*The rule which has been laid down and adopted is that
“legal liability alone is not the test of injury, in respect of
which damages may be recovered under this statute ; but the reason-
able expectation of pecuniary advantage by the relative’s remaining
alive may be taken into account by a jury, and damages given in
respect of that expectation, if it be disappointed aud the probable
pecuniary loss thereby occasioned.”” Thus a parent may recover
for the loss of the probability that his son would have continued to
contribute to his maintenance ;* and children may recover for the
loss of the education, comforts, and position in society, which they
would have enjoyed if their father had lived and retained the income
which died with him, and they had continued to reside with him ; and
even the probability that the deceased if he had lived would have

_ [7450]

1 Hicks 0. Newport Ry. Co, 4B. & linv. 8S. E. Ry.Co.,3 H. & N. 211;
8S. 403, note; Bradburn ». Great Pym v.'G. N. Ry. Co., 2B. & 8. 759;
Western Ry. Co., L. R, 10 Ex. 1; 44 311. J. Q. B. 249; affirmed 4 B. &
L. J. Ex. 9. S. 396; 82 L. J. Q. B. 377.

* Dalton v. 8. E. Ry. Co, 27 L. J. 3 Dalton v. 8. E. Ry. Co., supra.

C. P. 227; 4.0. B. (N.S.) 296; Frank-
Actions against Exxourors. 679

made provision for his children may be considered. And the
remedy given by the statute being to individuals and not to a class,
the action is maintainable, though the income of the deceased arises
from land and personalty, and is not lost to his family by his
death, if in consequence of the death the mode of its distribution
among the members is changed.”

If no pecuniary damage is proved the defendants are entitled to
the verdict. No damages can be recovered in respect of funeral
expenses or mourning.*

Sec. 708. No action unless deceased could have sued.

It will be observed that this action will only lie under circumstan-
ces which would have admitted of its being maintained by the de-
ceased, had he survived.’ It therefore is barred by an accord and
satisfaction with the deceased in his life-time," and will fail where
the injury was the result of his own negligence.’ And it will
equally fail where the party *met his death while employed [451]
in the service of his master, in consequence of the negligence
of a fellow-servant, provided the latter was a proper person to be
placed in the situation he filled.°

Sec. 709. On whose behalf.

A claim under Lord Campsetz’s act may be preferred by an
infant who was en ventre sa mére at the time of the injury which
caused the death of its father.’ It has also been held, though with
much difference of opinion, that the admiralty court, under 24 Vict.,
ch. 10, § 7, has power to assess and award similar damages in a pro-
ceeding im rem against a foreign ship which had come within its
jurisdiction. Accordingly damages were granted against such a ship
at the suit of a plaintiff whose husband had been killed in a collision
caused by the improper navigation of the ship.”

1Pym vo. G. N. Ry. Co., supra. Tucker v. Chaplin, 2 C. & K. 730;
*Td. Pym v. G. N. Ry. Co., 2B. & 8. 767.
* Duckworth v. Johnson, 4H. & N. * Hutchinson v. York, N. & B. Ry.
653; 29 L. J. Ex. 25. Co., 5 Ex. 343; Wigmore o. Jay, id:

4Dalton v. S. E. Ry. Co., supra. 854; Wiggett o. Fox, 11 Ex. 832; 25
5 This has reference not to the na- L. J. Ex. 188.
ture of the loss sustained, but to the 9 The George and Richard, L. R., 3
nature of the wrongfulact complained Ad. & Ec, 465.
of. Pym v. G. N. Ry. Co., supra. 10 The Franconia, L. R.,2P.D. 163.
6 Read vo. G. E. Ry. Co., L. R., 3Q. Contra, Smith v, Brown, L. R., 6 Q.
B. 555; 87 L. J. Q. B. 275. B. 729. :
680 Aotions against Exxcurors.

Sec. 710. Actions against an executor. New procedure.

Where the action is brought against the executor, the amount of
damages recoverable depends upon the character in which he is sued.
Where he can only be sued in his representative character, he is in
general only liable to the extent of the assets. On the other hand,
where the action can be maintained against him in his individual
capacity, he is personally responsible, just as any other defendant.
Without attempting to give a detailed account of all the principles
on this head, it may be advisable to point out the leading distinc.
tions which prevail. With this view it will be convenient to con-
sider, first, the cases in which the defendant may be sued as executor ;
secondly, those in which he may be sued personally; thirdly, the
mode in which he should protect himself by pleading, and the effect
of a judgment against him. It must be premised, however, that
new claims against an executor or administrator as such may be
joined with claims against him personally, provided the latter are
alleged to arise with respect to the estate in respect of which he is
sued as executor or administrator.’

Sec. 711. When executor must be sued as such.

It was an old principle of the common law that such personal
actions as were founded upon any obligation, *contract, debt,
covenant, or duty, on which the testator or intestate might
have been sued in his life-time, survived his death, and were enforce-
able against his executor or administrator to the extent of the assets.’
And accordingly an action for rent, incurred entirely in the lifetime
of the testator, must be brought against the executor in his repre-
sentative capacity ;* and he is not only liable upon all covenants of
the testator which have been broken in his life-time, but also for
breaches in his own time so far as he has assets. Thus if a tenant
in tail leases for years, and dies, and the issue in tail ousts the
termor, he shall have covenant against the executors, upon an
express covenant for quiet enjoyment.‘ And so upon an express
covenant, as for instance, to pay rent, the executor of the lease will
be liable as far as he has assets, even though the term has been

[*452]

Ord. 17, R. 5. 3 Wms. Exors. 1758, 7th ed.
*1 Wms. Saund. 216, b; 1 Wms. ‘4 Fitz.N. B. 145 (EB), n. @)
Notes to Saund. 240; Wms. Exors.
1721, 7thed.
Actions against Exxourors. 681

assigned over, and although the covenant runs with the land, so as
to give an alternative remedy against the assignee.! Where, how-
ever, the obligation arises out of an authority given by the deceased,
it is in many cases revoked by the death, and no action can be main-
tained against the personal representative in respect of it. In the
following case, the plaintiff had contracted with A, the intestate, to
sell a picture, the property of the latter, for which service he was to
receive 1002. A died, and after his death the plaintiff succeeded in
selling it. He then sued the administratrix for the 1002., alleging
that she had confirmed the sale. It was held that the declaration
was bad, since the authority to sell was revoked by death, and the
mere confirmation of the sale was not a confirmation of the original
contract, upon which the sale had been effected. If the defendant
had continued the employment, with full knowledge that under the
agreement 100. was to be paid to the plaintiff on the sale, that sum
of 1002. might have been the gauge or measure by which the jury
would estimate the plaintiff's damages, but no more. In the absence
of such evidence, a mere confirmation of the sale would only make
the defendant liable as upon an ordinary employment to sell.’

Sec. 712. When executor not liable,

_ *An executor, however, is not liable on a contract which
involved a matter of personal skill, as for instance, on an
undertaking by an author to write a book, or by an engineer to build
a lighthouse. For this has become impossible by the death?

[#453]

Sec. 713. Actions of tort. 3 & 4 Wm. IV, ch. 42.

The same principles of common law, which forbid actions by exec-
utors for torts, also forbid actions against them for a similar cause.
The rule, however, has been broken in upon by statute; 3 & 4 Wm.
TV, ch. 42, § 2, allows actions of trespass, or on the case to be main-
tained against the executors or administrators of any person deceased,
for any wrong committed by him in his life-time to another in re-
spect of his property, real or personal, so as such injury shall have
been committed within six months before the death, and so as such

' Wms. Exors. 1750, 7th ed. 3 Marshall v, Broadhurst, 1 Tyrwh.

? Campanari v. Woodburn, 15 C. B. 349; per Parrsson, J..10 A. & EB. 45.
400; 24L.J.0.P. 18, %

86
682 Actions against Exrovurtors.

action shall be brought within six months after the executors, etc.,
shall have taken upon themselves the administration of the estate.
But eveh independently of this statute, the plaintiff has it frequently
in his power to waive the tort. ‘Where, beside the crime, property
is acquired which benefits the testator, there an action for the value
of the property shall survive against the executor. As, for instance,
the executor shall not be chargeable at common law for the injury
done by his testator in cutting down another man’s trees, but for the
benefit arising to his testator he shall. An intestate had tortiously
taken and sold coal, the property of thé defendant; some of the
trespasses were committed more than six months before his death.
The plaintiff sued his administrators in trespass under the above
statute for the wrongs done within the six months. He was then
allowed to bring an action for money had and received for the coal
sold previously, although no distinct evidence could be given of the
amount received for it. The jury gave what they considered to be
the value of the coal taken, deducting the expense of raising and
conveying it to market.’

Sec. 714. Vindictive damages not allowable against an executor.

Of course, in such an action against the executors, vindictive
damages could not be given in respect of the malice of the original
trespasser, or even, I should conceive, in respect of any insolent or
violent behavior while committing the injury, *except so
far as it caused pecuniary loss. No doubt the executor him-
self would not be affected by the amount of the verdict, as he would
not have to pay it out of his own pocket. It might, however, be
paid for out of the purses of the creditors, which would be most
unjust, and, in any case, it would be making the legatees and next of
kin suffer for the motives and insolence of another party.

[*454]

Sec. 715. Actions against executors for dilapidations.

An anomalous exception to the principle that actions for tort do
not survive is the action for dilapidation against the executor of a
deceased incumbent. This has been explained by Writes, C. J.,
on the ground that it is not considered as a tort in the testator, but
a duty which he ought to have performed ; and therefore his repre-

1 Per Lord MANSFIELD, Hambly ». ® Powell v. Rees, 7 A. & E. 426.
Trott, 1 Cowp. 371, 376.
Actions against Exrcurors. 683
sentatives, so far as he left assets, shall be equally liable as himself.!
But it is now agreed that it is an anomalous action, based upon a
particular custom of the realm, and not upon the common and ordi-
nary principles of the law of England.’ The remedy is not merely
for dilapidations happening in the time of the last incumbent, but
for the dilapidations existing at the time his incumbency ceases ; for
he was bound to keep the vicarage in sufficient repair, or to make
compensation to the extent of putting it in repair, and he had the
same remedy against the representatives of his predecessor, if he
chose to employ it.*. Two propositions have been laid down as to
the amount of repair ; — first, that the incumbent is bound, not only
to repair the buildings belonging to his benefice, but also to restore
and rebuild them if necessary ; secondly, that he is bound only to
repair, and to sustain, and rebuild when necessary. He is bound to
maintain the parsonage (which must be assumed to be suitable in
point of size, and in other respects, to the benefice) and aiso the
chancel, and to keep them in good order and substantial repair, re-
storing and rebuilding when necessary, according to the original
form, without addition or modern improvement; he is not bound to
supply or maintain any thing in the nature of ornament, to which
painting (unless necessary to preserve exposed timbers from decay) and
whitewashing, and papering belong. It is upon this footing [#455]
that damages *are to be estimated.‘ If the state of the vicar-

age be such that timber or stone could be got for the necessary re-
pairs, that would go in diminution of damages, but it is only a cir-
cumstance to be taken into consideration in estimating the sum
payable by way of compensation.°

e

Sec. 716. Contracts made with executors as such.

There are also some cases in which the executor is in form sued
upon a contract made with himself, and yet the action charges him
in his representative capacity only, and the judgment can only be
for payment out of the assets. This isso, where the action is for

1 Sollers ». Lawrence, Willes, 421.

? Bryan vo. Clay, 1 E. & B. 38; Ross
v. Adcock, L. R., 3 C. P. 655; 37 -L. J.
©. P. 290.

3 Per Parxs, B., Bunbury v. Hewson,
3 Ex. 558, 562.

4 Per Cur. Wise v. Metcalf, 10 B. &
C. 299, 316. The right to recover is

confined to dilapidations to houses and
buildings, and does not extend to
waste by digging gravel; Ross ».,
Adcock, L. R., 3 C. P. 655; 87 L. J.
C. P. 290. As to hot-houses, see Mar-
tin v. Roe, 7 E. & B. 237; 26 L. J. Q.
B. 129.
’Bunbbury v. Hewson, ubi sup.
684 Actions against ExEcurors.

money paid by the plaintiff to the use of the defendant, as execu-
tor." That imports that the plaintiff has paid it, not on the personal
account of the defendant, but because he was executor; that is, in
release of something which would otherwise have been a burden on
the assets of the testator. And the case is the same where the count
is on an account stated between the plaintiff and the defendant as
executor, of money due from the testator to the plaintiff;* or of
money due from the defendant as executor to the plaintiff, for the
only proof admissible in support of such a cause of action would be
an account stated respecting debts due from the testator himself.’

Sec. 717. Actions against executor personally.

In all the above cases, as we have seen, the executor is only liable
as holding the property of the testator, and the judgment could
only be de bonis testatoris. There are, however, many cases in
which the executor is liable personally, whether he has got assets or
not.

Sec. 718. Contract made by him.

The most obvious of these cases is where he is charged upon a
contract made with himself, or an obligation thrown upon himself,
subsequently to the death of the testator. For instance, ona count
for money lent to himself,‘ or for money had and received by him-
#456] self, as executor, for the use of the *plaintiff. Where an

executor receives money to the use of a particular individual,
it operates as a specific appropriation of that money belonging to
the party, and he, in his individual capacity, must be liable for the
money so received. It has nothing to do with the accounts of the
testator. If it be the plaintiffs money, he is entitled to it, whether
there be assets or not, and whether the executor have or have not
applied to other purposes the money so received.’ So where the
count is on an account stated with the executor of money received
by himself personally,’ or for goods sold and delivered to the
defendant as executor, or for work and labor performed and materials

1 Ashby 2. Ashby, 7 B. & OC. 448, B. & C, 255; Powell v. Graham, 7
449, 451, 452; Corner o. Shew, 3 M. Taunt. 580.
& W. 350. 4Rose v. Bowler, 1 H. Bl. 108;

2Segar v. Atkinson, 1 H. Bl. 102. Powell v. Graham, 7 Taunt. 586.

3 Ashby 0, Ashby, 7 B. & C. 451. > Ashby ». Ashby, 7 B. & OC. 451, 453.
And see Dowse 2. Coxe, 3 Bing. 20; 6 67 Taunt. 586.
Actions against ExxEcurors. 685

supplied to the defendant as executor, because these necessarily imply
debts due from the defendant in his own right.'

Sec. 719. Trading.

So if executors carry on trade, they must do it as individuals, and
for their own advantage,” and they will be personally responsible on
all contracts entered into by them, even though -hey do not receive
any thing for themselves, but carry over the receipts to the account
of the next of kin, for whose benefit the trade is continued.’

Sec. 720. Effect of a submission to arbitration.

A submission to arbitration by an executor is a reference not only
of the cause of action, but also of the other question whether or
not the executor has assets. Therefore, where the arbiter has awarded
the defendant to pay the amount of the plaintiff's demand, it is
equivalent to determining as between those parties that the executor
has assets. The defendant is concluded by the award, and cannot
plead plene administravit.* But it is different where the arbitrator
has merely awarded that a certain sum is due from the estate with-
out awarding that the executor is to pay it, for this amounts to no
admission of effects; or where he directs the *defendant to [#457]
pay it out of the assets, on a fixed day, for this means if
there are any assets in his hands at that time.°

Sec. 721. Liability of executor for funeral expenses.

A good deal of doubt has been raised as to the liability of an ex-
ecutor for funeral expenses. The result of the decisions seems to
be, that where the executor has personally ordered the funeral, he
is personally responsible whether there be assets or not,’ and cannot,
even out of the assets, as against a creditor, retain more than a
reasonable amount, regard being had to the degree and condition in
life of the deceased.’ Even where the executor gives no order for
the funeral, he is liable for a reasonable amount, if he has assets,

1 Corner v. Shew, 3M. & W. 350. 4Worthington v. Barlow, 7 T. R.
? Per Lord MansrFiEp, 1 T. R. 295. 453; Barry 0. Rush, tid. 691; Riddell
3 Wightman ». Townroe, 1M. &S. » Sutton, 5 Bing. 200.
412. They may sué as executors if 5 Pearson v. Henry, 5 T. R. 6; Love
the money recovered would be assets; 0. Honeybourne, 4 D. & Ry. 814.
Abbott v. Parfitt, L. R., 6 Q. B. 346; 6 Brice v. Wilson, 8 A. wE. 349, n.
40 L.J. @ B. 115; Moseley ». Rendell, 7 Hancock 0. Podmore, 1 B. & Ad.
L. R., 6 Q. B. 338; 40L. J.Q.B.111. 260; Edwards ». Edwards, 2C. &M.
612.

«
686 Actions against ExxcurTors.

upon an implied promise; and where he is liable at all in this mat-
ter, he is liable personally, and not in his representative character,
inasmuch as the implied promise cannot place him in a different
condition from that in which he would have been if he had made
an express contract to that effect, which certainly would only
have bound him personally.' Where, however, the executor has
not ordered the funeral, and it has been furnished, not upon his
credit, but upon that of some other person, he is not liable pri-
marily to the undertaker; but if he had assets, he is liable to
repay the reasonable expenses so incurred by the party who has de-
frayed them.’

Sec. 722. Use and occupation.

It has been held that an action for use and occupation of land by
executors as such makes them personally liable.’ But it appears
that this is not invariably so. It has been pointed out that the stat.
11 Geo. IT, ch. 19, § 14, allows landlords to maintain this action for
lands held or occupied by the defendant. Consequently, a decision
which alleged a demise to the testator, and then, without stating any
entry by the defendants, averred that they, as executors, promised
to pay the rent, was held good. Mavts, J., said, “I think it dis-
closes a sufficient cause of action against the defendants in their
representative capacity. It in terms so charges them ; for it
*means that the plaintiff is seeking to charge them in respect
of the assets of their testator. It is probable that they may be so
liable. If the testator held the premises, and if the defendants since
his decease have not actually ocvupied, but have held only, and rent
has acerued, they would not be personally liable, but the assets in .
their hands would be liable.’”*

[#458]

Sec. 723. Actions for rent due since the death of the testator.

We have seen before, that actions for rent which became due in
the life-time of the testator must be brought against the executor in
his representative character, and the judgment can only be de bonis
testatoris.. When a lease to the testator devolves-upon the execu-

1 Rogers v. Price, 3 Y. & J. 28; ® Wigley v. Ashton, 3B. &A. 101.
Hayter ».Moat, 2M. & W. 56;Corner ‘Atkins 7 Humphrey, 2 C. B. 654,
» Shew, 3 id. 350; Magennis 7 Demp- 658.
sey, I. R., 3 C. LU. 327. 5 Ante, p. 680.

* Brice v, Wilson, ubi sup.; Green v,

Salmon, 8 A. & EH, 348.
Aotions AGAInst Exrcutors. 687

tor, and rent becomes due after the death, the lessor, whether he
sues in debt or on the covenant to pay rent, has his election either
to sue him as executor, or to charge him personally as assignee in
respect of the perception of the profits... And if he selects the
latter course, it seems to be immaterial whether the executor has
entered or not, because the fact of his being executor proves the
allegation that the estate of the lessee in the premises lawfully came
to the defendant.” The result to the executor in either case is the
same, though it may involve a different mode of pleading. Where
an executor is sued in his representative capacity for rent accruing
in his own time, whether the action be debt, covenant, or use and
occupation, he may plead plene administravit; and, under that
plea, may show that the land yields no profit, and that he has no
assets aliunde ; but if the land yields a profit equal to the rent, he
will fail on such a plea, for he is bound to apply the profits of the
land toward payment of the rent in the first instance, and his not
doing so will be a devastavit. If, then, the land yields some profit,
but less than the rent, it should seem that his plea should be plene
administravit preter the profit.’ Where, however, the executor is
sued in his individual capacity, as assignee, for rent subsequently
incurred, he cannot plead plene administravit, even although he be
named as executor in the declaration; for if the rent be of
*less value than the land, as the law prima facie supposes,
so much of the profits as suffices to make up the rent is appropriated
to the lessor, and cannot be applied to any thing else; and, therefore,
the plea would confess a misapplication, since no other payment out
of the profits can be justified till the rent is answered.‘ The
same effect will be attained by a special plea, for the defendant may
discharge himself from personal liability, by alleging that he is not
otherwise assignee than by being executor of the lessee, and that he
has never entered or taken possession of the demised premises ; and
from all liability as executor, by alleging that the term is of no value,
and that he has no assets.° Where there are profits, but to a less

[#459]

11 Wms. Saund. 1; 1 Wms. Notes lapp, 1 Wils. 4; Wilson o. Wigg, 10
to Saund. 1. East, 313.

? Williams v, Bosanquet,1B. & B. 4 Buckley o. Pirk, 1 Salk. 3817;
238; Wollaston ». Hakewill, 3M. & Wms. Exors, 1756, 7th ed.
G. 297. . 5 “Per Trnpau, C. J., Wollaston o.

1 Wms. Saund. 111, a; 1 Wms. Hakewill, 3 M. & G. 321; Kearsley
Notes to Saund. 126; Lyddall». Dun- ». Oxley, 2H. & C. 896.
688 Actions AGaInstT EXxEcUToRS.

extent than the rent, the executor must confess that part, and plead
to the remainder of the action the deficiency of assets.’

Sec. 724. Where the term has been assigned.

If the term was assigned by the testator, it seems clear that the
executor cannot be charged as assignee, because the lease did not
pass to him; but still he will be liable in debt for the rent, unless
the lessor has accepted the assignee as his tenant, and even in that
case the executor will be liable, as executor, in covenant. If the
executor enters, and afterward himself assigns the lease, then he is
chargeable as assignee, for that time only during which he occupied.
And if he 1s sued for rent incurred since the assignment by himself,
he 1s liable in his representative character only.’

Sec. 725. How the profit accruing from the land is to be estimated.

Since then the amount of damages which can be recovered against
the executor in an action for rent depends so much upon the
amount of profit arising out of the premises, it is important to in-
quire upon what principles this profit is estimated. For this pur-
pose, it is not sufficient to show that no profit was received by the
executor, unless he can also show that no profit could have been re-
ceived by the exercise of reasonable diligence. Therefore, where
the testator was lessee of premises at a rent of 907. per annum, and
after his death *the defendant made every effort to let them
at the rent reserved, but failed to do so, and never occupied
the premises himself, nor derived any rent or profit from them; the
jury, however, found that he might have let them for 60/.; it was
held that he was liable to this extent.* In a former case it appeared
that the lease to the testator contained a covenant to repair. He
had underlet with a similar covenant. The under-lessee allowed
the premises to get into such disrepair that they were nearly worth-
less, and ultimately became insolvent, and ceased paying rent. The
court held that these facts were no defense in an action against the
executor. The real value, as against one who takes to the premises,
and accepts rent for them after the death of his intestate, must be
taken to be that which the premises would have been worth but for

[*460]

‘Rubery v. Stevens, 4 B. & Ad. to Saund. 127; Helier v. Casebert, 1
241. Lev. 127; Leigh ». Thornton, 1 B. &

? Wms. Exors. 1758, 7th ed.; 1 A. 625; Wilson v. Wigg, 10 Hast, 313.
Wms. Saund. 111,a;1 Wms. Notes *% Hopwood ». Whaley, 6 C. B. 744.
Actions against ExEcuTors. 689

his own act. Ifhe had performed the covenant to repair, which he
was liable to do, the premises would have been worth at least as
much as the rent. He cannot take advantage of his own wrong,
by availing himself of a reduction in value, occasioned solely by
the want of repair in his own time. As to the nonpayment of rent
by the under-lessee, the plaintiff has nothing to do with it. The
value of the premises, as between him and the defendant, is not af-
fected by that.

But although the executor is bound to apply the profits of the
land in payment of rent, this rule, it seems, only applies to the case
of yearly profits issuing out of the land, and not to money arising
from the sale of land which he has disposed of." Nor can any
statement by the testator, as to the value of his property, be any
ground for charging the executors with such value, if contained in
deeds to which they are not parties.’

Sec. 726. Covenant to repair.

Where, however, the action against the executor is brought on a
covenant to repair, his liability prevails to the same extent as that
of any other assignee, and a plea that the *premises had [#461]
yielded no profit since the testator’s death, is bad on general
demurrer.*

Sec. 727. Effect of a devastavit at law; in equity.

The last case necessary to notice in which the executor is person-
ally liable is where he has committed any act amounting to a devas-
tawit. Upon this point there has been a difference between the
doctrines of law and equity. At law, it was stated by Lord Exien-
BoRouGH, that no case had decided that an executor, once become
fully responsible by actual receipt of a part of his testator’s prop-
erty, for the due administration thereof, could found his discharge
in respect thereof, as against a creditor seeking satisfaction out of
the testator’s assets, either on the score of inevitable accident, as

1 Per Cur. Hornidge v. Wilson, 11 4 Tremeere v. Morison, 1 Bing. N.C.
A. & E. 645, 655. 89; affirmed, Hornidge v. Wilson, 11

? Collins v. Crouch, 13 Q. B. 542. A. & E. 645; Sleap v. Newman, 12
Quere, might not the money be taken C. B. (N. 8S.) 116.
as representing the land, so as to 5 See as to what constitutes a devas-
make the interest upon it amenable tavit, Wms. Exors. 1796, 7th ed., e¢

to the claims of the lessor ? seq.
2 Rowley v. Adams, 2 H. L. Cas.

770.
87
690 Actions against ExEcurors.

destruction by fire, loss by robbery, or the like, or reasonable ex-
pectation disappointed, or loss by any of the various means which
afford excuse to ordinary agents and bailees in cases of loss without
negligence on their part.

But in equity an executor was relieved against a bond or other
claim upon his testator, brought up against him after the assets have
been accidentally destroyed, as by fire, or theft, where there had
been no delay or negligence upon his part.*. Nor was he held respon-
sible for the failure or depreciation of the fund in which any part
of the estate might be invested, or for the insolvency or misconduct
of any person who might have possessed it, or to whom it might
have been necessarily intrusted in the course of business, so long as
he himself exercised a reasonable diligence, and acted strictly within
the line of duty. But if he omitted to sell property when it ought
to have been sold, or left money due upon personal security, and a
loss ensued; or if he had himself been the author of the improper
investment; or had without necessity intrusted the assets to a per-
son in whose hands they were subsequently lost, he was held liable,
_ even where that person was his co-executor or co-administrator.*
*The rules of equity will now prevail over those at law.‘
is the duty of an executor, as of any other trustee, to keep
the property with which he is intrusted separate from his own ; and
where he mixes the assets with his own funds, he will be strictly
responsible for any loss that may ensue.°

*
[#462] lt

Sec. 728. Proper mode of pleading by an executor.

Where the executor is sued upon any cause of action where the
judgment will be de bonis testatoris, and he has not assets to satisfy
it, he should plead accordingly. For a judgment against him,
whether by default or upon demurrer, or upon a verdict on any plea
except plene administravit, or plene administravit prater, is con-
elusive against him that he has assets to satisfy such judgment."
But upon the two last-named pleas the onus of proving assets lies

1 Crosse v, Smith, 7 East, 258. 4 Judicature Act, 1878, § 25, subd

? Holt v. Holt, 1 Cha, Ca. 190; Lady § 11.

Croft v. Lyndsey, Freem. Ch. 1; Jones 5 Freeman v. Fairlie, 3 Mer. 29, 43;
o. Lewis, 2 Ves. Sen. 240. Clarke v. Tipping, 9 Beav. 292; Mas-

® Clough v, Bond, 3 Myl. & Cr. 490, sey v. Banner, 4 Madd. 413.

496; Robinson v. Robinson, 1 De G. °1 Wms. Saund. 219, b.; 1 Wms.

M. & G. 247; Oriental Commercial Notes to Saund. 249,
Bank v. Savin, L. R., 16 Eq. 208.
Actions AGAinst ExEcurors. 691

upon the plaintiff, and a judgment against him upon them is only
an admission of assets to the amount proved to be in his hands.'

Sec. 729. Judgment against him.

Whenever the action against an executor or administrator can
only be supported against him in that character, and he pleads any
plea which admits that he acted as such (except a release to himself),
the judgment against him must be, that the plaintiff do recover the
debt and costs to be levied out of the assets of the testator, if the
defendant has so much, but if not, then the costs out of the defend-
ant’s own goods. As where the defendant pleads non est factum
testatoris, or a release to the testator, or payment by him, or non
assumpsit, or plene administravit, which is found against him.’
But where the defendant pleads ne wnques executor or adminis-
trator, or a release to himself, and it is found against him, the judg-
ment is, that the plaintiff do recover both the debts and costs de
bonis testatoris st, etc. et si non, de bonis propriis. The reason
alleged is, that the executor cannot but know these to be false pleas.
But it has been justly observed that the same reason applies equally
to other pleas where the *judgment is different.* If, how- [#463]
ever, the defendant has pleaded any other plea, which goes
to the whole cause of action, and is. found for him, he is protected.

Except, however, where the judgment against the defendant is on
a plea of plene admuistravit, which as we have seen is only con-
clusive to the amount of assets proved to exist, it is really a matter
of small importance to the executor how the judgment is entered up.
It only serves to postpone his fate by a single stage. The judgment:
is an admission of assets to satisfy it. Therefore, to a scire facias
founded upon it, or an action of debt suggesting a devastavit, the
executor cannot plead plene administravit, but only controvert the
devastavit ; of which fact the judgment, and the sheriff’s return of
nulla bona testatoris, are almost conclusive evidence, and judgment
will be against the defendant de bonis propriis.*

'Td:; Jackson v. Bowley, Car. & M. 31 Wms. Saund. 336, b; 1 Wms.
97; Yardley ». Arnold, id. 434; Stroud Notes to Saund. 610.

v. Dandridge, 1 C. & K. 445. 4 Edwards 0. Bethel, 1 B. & A.

271 Wms Saund. 385, n. 10; 1 254.

Wms. Notes to Saund. 605, n. 10; 2 51 Wms. Saund. 219, ch. 387; 1

Wms. on Exors. 1974, 7th ed.; Gorton Wms. Notes to Saund. 251.
o. Gregory, 3B. & 5S. 90.
692 AcTIons aGArInst EXECUTORS.

Of course, where judgment is given against the executor in his
individual capacity, it must be from the very first de bonis propriis,
and the testator’s assets are not liable at all. This is occasionally a
very great hardship, where the plaintiff’s claim really arises out of
something done for the benefit of the estate, which may be perfectly
solvent, though the executor personally may be worth nothing."

1See Ashby vo. Ashby, 7 B. & C. 449.
Actions sy Trustees Iv Banxrurproy. 693

CHAPTER XXXVII.

ACTIONS BY TRUSTEES IN BANKRUPTCY.

Sec. 780. Actions by trustees in bankruptcy.

731. Principles upon which trustees of bankrupt may sue. Beckham
vo. Drake.

732. Cases in which they may sue. Not for a mere personal injury,
unless there has been an agreement to pay money on account
of it.

733. Trespass to land or goods in his possession.

734. Nominal damages.

735. When the final loss to the estate is the criterion of damages.

736. When it 1s not.

737. Right to sue for his personal labor.

738. Right of action of wife. .

739. Bankruptcy of partner.

Sec. 730. Actions by trustees in bankruptcy.

Under the bankruptcy act, 1869, the property of a bankrupt
divisible among his creditors is now administered by a trustee
appointed by the creditors and acting under their direction. The
property vests in him on appointment, and comprises all property
belonging to or vested in the bankrupt at the commencement of the
bankruptcy, or acquired by or devolving on him during its continu-
ance. It does not comprise property held by the bankrupt in trust
for other persons.’ It would seem that the following observations,
based upon decisions respecting the rights and duties of assignees
under former acts, may be made with regard to trustees under the
act now in force.

Sec. 731. Principle upon which trustees of bankrupt may sue. Beckham v.
Drake.

*Actions by trustees in bankruptcy stand very much on
the same footing as those by executors, except that the rights
of the latter are not so limited as those of the former; for the
executor represents the deceased as to all his contracts and personal
rights, whether they are available as assets for the payment of his

[*464]

Bankruptcy act, 1869, 32 & 88 Vict., ch. 71, § 15.
694 Actions sy Trusters 1n BANKRUPTOY.

debts or not; but the trustee takes only those .beneficial matters
belonging to the bankrupt’s estate which may be applied for the
purpose of distribution amongst his creditors! Consequently the
right of action, and therefore the amount of damages recoverable,
depends upon the existence and degree of loss to the estate of the
bankrupt.

This question wasso exhaustively discussed in the case of Beck-
ham v. Drake, which ascended from the court of exchequer to the
House of Lords, that it will be necessary to do little more than
refer to that case and quote some passages from it. The plaintiff
had been engaged as foreman by the defendants at a certain salary
for seven years, either party making default in their share of the
contract to pay the other 5007. The plaintiff sued for breach of this
contract after his bankruptcy, the defendants pleaded bankruptcy,
and the plea was finally held to be a good one, on the ground that
the right of action passed to the assignees.”

Sec. 732. Cases in which they may sue. Not for mere personal injury, unless
there has been an agreement to pay money on account of it.

The general principle is, that all rights of the bankrupt which
can be exercised beneficially for the creditors do so pass, and the
right to recover damages may pass though they are unliquidated.

This principle is subject to exception. The right of action does
not pass where the damages are to be estimated by immediate refer-
ence to pain felt by the bankrupt in respect of his body, mind, or
character, and without immediate reference to his rights of property.
Thus the trustee cannot sue for breach of promise of marriage,
seduction, ‘defamation, battery, injury to the person by negligence —
as by not carrying safely, not curing, not saving from imprisonment
by process of law; even though some of these causes of action may
be followed by a consequential diminution of the personal estate, as
[#465] where by reason of a personal injury a man has been put *to

expense, or has been prevented earning wages or subsist-
ence; or where by the seduction the plaintiff has been put to ex-.
pense;° also the right of action does not pass in respect of wages
earned by the bankrupt upon a hiring after the bankruptcy; also

1 Per WituiaMs, J., 2H. L. Ca. 696. 846; 11 M.& W. 315; 2 H. L. Ca.

? Beckham v. Drake, 8 M. & W. 579.
3 Per Parks, B., 2H. L. Ca. 626.
Actions By Trustees 1x Banxrvurroy. 695

the right of action cannot be made to pass to the trustee in respect
of contracts uncompleted at the time of the bankruptcy, by their
adoption and completion thereof, where the personal service of the
bankrupt is of the essence of the contract.! But although a right of
action for not marrying or not curing, in breach of an agreement to
marry or cure, would not generally pass to the trustee, a right to a
sum of money, whether ascertained or not, expressly agreed to be
paid in the event of failing to marry or cure, would pass. The»
agreement of the parties that money shall be paid as compensation
makes the right to recover the money a part of the personal estate
of the bankrupt, as much as a recovery, before the bankruptcy, of a
judgment, in an action for an injury to the person or character of the
bankrupt, would do.”

Sec. 733. Trespass to land or goods in his possession.

So rights of action for trespass to lands or goods in the actual
possession of a trader do not pass to his trustee if he becomes bank-
rupt, because those rights of action are given in respect of the im-
mediate violation of the possession of the bankrupt, independently
of his rights of property, and are an extension of the protection
given to his person, and the primary personal injury to the bank-
rupt is the principal and essential cause of action.* But Wixps, O.
J., in reference to this doctrine, said: ‘I apprehend that if the
trespasser has done actual damage to the personal estate of the bank-
rupt, as well as committed a trespass on his possession, there is no
authority which decides that assignees may not maintain an action
in respect of the diminution in value, or injury to the chattels that
have passed to them under the bankruptcy.*

Sec. 734, Nominal damages.

But although damages cannot be given for injuries which
*are merely personal to the bankrupt, it by no means follows
that actions can only be brought where substantial damages can be
recovered. Even where there is no actual damage proved, or where

1 Per Erte, J.. 2 H. L. Ca. 603, ing to himself, apart from the pecuni-

(*466]

604. ary damage resulting to his estate,
2 Per Mave, J., 2H. L. Ca. 622. see Rogers v. Spence, 12 Cl. & F.
3 Per CRESSWELL, J., id. 618. 700; Hodgson o. Sidney, L. R., 1 Ex.

“Id. 6384. As towhetherthe bank- 313; 35 L. J. Ex. 182; Morgan o.
rupt can sue for special damages result- Steble,L. R., 7Q. B. 611.
696 Actions sy Trusters In BANKRUPTCY.

the damage is merely nominal for a breach of the contract ; still, if
that is in respect either of property or of a proprietary right, such
as service or work and labor, even in that case it passes.?

Sec. 735. When the final loss to the estate is the criterion of damages.

Where the gist of the action is the loss to the estate, of course
the damages are measured by the loss which has accrued, or is likely
to accrue at the time of action brought. The bankrupt had con-
tracted for the purchase of iron, and given bills for the amount.
The contract was broken by the vendors while the bills were still
correct. Subsequently the purchaser became bankrupt and the bills
were dishonored, and after such dishonor his assignees sued for the
non-delivery of the iron. At the time the contract was broken
there was no difference between the contract and market price.
The plaintiffs claimed as damages the whole value of the iron, on
the ground that. their rights were the same as those of the bank-
rupt had been, at the time the contract was broken. That at that
time he was entitled to recover the full value, since the bills were
then current, and while current operated as payment. The court,
however, held that the parties were in the same situation as if no:
bills had been given, or the contract had not been to pay by bills.
And, there being no difference shown between the market price at
the time of default and the contract price, the vendees could only
have recovered nominal damages; no more, therefore, could the
assignees.” In another case, H. before his bankruptcy lent the de-
fendant a pheton on hire, and the latter by his negligence injured
it. The phaton had been hired by H. himself from a third
party, to whom it was sent back, who repaired it and proved
for the amount against the estate. It was held that the assign-
ees might sue for breach of the contract to use the pheton in
[467] a proper manner. Tuvpat, OC. J.,*said: ‘ As to the question .

of damages, if H. before his bankruptcy had done the neces-_
sary repairs himself, or had paid for them when done, he would un-
doubtedly have been entitled to the whole sum which was laid out ;

1 Per Lord Brouenam, id. 640. held under similar circumstances to be
2 Valpy v. Oakeley, 16 Q. B. 941; only entitled to nominal damages;
20 L. ip Q.'B. 380. So assignees for Griffiths v. Perry, 1 E. & E. 680; 28
value suing in the bankrupt’s name, L. J. Q. B. 204.
but for their own benefit, have been
Actions By Trustezs in BANKRUPTCY. 697

or if his estate had actually paid, or had been proved even likely to
pay, any part of the amount proved against it, such proportions
would have been the measure of the damages sustained by the bank-
rupt’s estate. But as there is no proof to this effect, the consequence
appears to us to be, that the plaintiffs are entitled to nominal dama-
ges for the breach of a contract, on which they had the right to sue,
and where no actual damage is proved.” }

Sec. 736. When it is not.

On the other hand, where a right to recover a specific sum has
once vested in the bankrupt, as by breach of an agreement to apply
money to a particular purpose, or to return the proceeds of a bill,
this right passes to the trustee unaffected by the subsequent bank-
ruptcy ; and it makes no difference that the money wrongfully
retained by the defendant has in fact been applied by him in dis-
charge of a debt due to himself from the bankrupt, so as to leave
the whole amount of claims upon the estate the same as it would
have been had the money been properly applied. The trustee is
still entitled to recover the entire amount originally due.* A for-
tiort will he be entitled, where the act complained of has caused a
diminution in the. bankrupt’s estate; as, for instance, where the
bankrupt lodged money with the defendants to apply in payment
of his rent, and in consequence of their not applying it as directed,
the landlord distrained his goods for the amount.*

Sec. 737. Right to sue for his personal labor.

The trustee, as has been stated above, has no right to sue for the -
proceeds of the mere personal labor of the bankrupt, due after his
bankruptcy ;* though, if a person in his situation should gain a large
sum of money or considerable effects, then such money or effects
would undoubtedly belong to his trustee.° But this rule only ap-
_ plies to what may be strictly *termed personal labor. There- [#468]

fore, where the plaintiff was a furniture broker, and had
been employed by the defendant in removing his goods, in the course

1 Porter v. Vorley, 9 Bing. 156, 157. Ca. 648; Chippendale v. Tomlinson, 4
? Hill ». Smith, 12 M. & W. 618; Dougl. 318, 322, n.
Alder v. Keighley, 15 id. 117. See the 5 Per Buuuer, J., 7 East, 57, n.;
facts of these cases, ante, pp. 156,157. per Lord Atvanuey, Hesse v, Steven-
3 Hill ». Smith, wbi sup. son, 3 B. & P. 578. :
4 Per Lord CaMPBELL, C. J.,2 H. L.
698 Actions By TRrusTEEs Iv BANKRUPTCY.

of which employment the plaintiff procured vans, supplied packing
cases, and employed five or six men in the packing, unpacking, and
conveyance of the property; and likewise cleaned and repaired
some furniture, and found materials for this purpose; it was held
that his claim on this account was not a matter of personal labor,
and that a payment to the assignees was good.!. The same decision
was given where it appeared that the plaintiff was a medical prac-
titioner, who had become bankrupt ; afterward, by an arrangement
with a friend who had purchased his stock of medicines, he contin-
ued in possession of them on credit, carrying on his business as
before, and was supplied with fresh medicines on credit. The debt
was contracted under these circumstances, the plaintiff attending
the defendant, giving him the benefit of his skill, and furnishing
the medicines which he thought necessary. The court thought
this came within the case of Crofton v. Poole, and that it would
be extending the principle laid down in Chippendale v. Tomlin-
son far beyond what was reasonable to apply it to such a state of
things.”

Sec. 738. Right of action of wife.

When a right of action of a bankrupt’s wife is of such a character
that if vested in the bankrupt alone it would have passed to his
trustee, the bankrupt’s interest in it passes to the trustee.’

Sec. 739. Bankruptcy of partner.

It was held that a partner might sue jointly with the assignees of
a bankrupt partner to recover the proceeds of bills belonging to
the partnership fraudulently indorsed by the bankrupt in satisfac-
tion of his private debt to a person aware of the fraud.‘

1 Crofton v. Poole, 1 B. & Ad. 568. * Heilbut o. Nevill, L. R., 4 C. P.

® Elliot 0. Clayton, 16 Q. B. 581. . 854; 88 L. J. C. P. 278; affirmed in

Richbell ». Alexander, 10 CO. B. Ex. Ch, L. R., 50. P. 478; 39 LJ.
(N. 8.) 824; 30 L. J. C. P. 268. C. P. 246.
Aotions By Principau AGAINST AGENT. ; 699

‘

CHAPTER XXXVIIL

ACTIONS BY PRINCIPAL AGAINST AGENT.

Src. 740. When an action hes. ;

741. When a loss has arisen from his negligence.

742. Actual loss furnishes the measure of damages.

743. ‘Damages must be the necessary result; and not be too remote.

744. Nominal damages. When defendant may show that no loss could
have taken place.

745. Agent bound to account for profits.

746. Commission on sale.

747. Revocation of authority.

748. Agent entitled to indemnity.

Sec. 740. When an action lies.

Whenever an agent violates his duties or obligations to his prin-
cipal, whether it be by exceeding his authority or by positive mis-
conduct, or by mere negligence or omission in the *proper [469]
functions of his agency, or in any other manner, and any
loss or damage thereby falls on his principal, he is responsible for
it, and bound to make a full indemnity. In such cases it is wholly
immaterial whether the loss or damage be direct to the property of
the principal, or whether it arise from the compensation which he
has been obliged to make to third parties in discharge of his liability
to them, for the acts or omissions of his agent.’ The loss or damage
need not be ‘directly or immediately caused by the act which is
done, or which is omitted to be done. It will be sufficient if it be
fairly attributable to it, as a natural result, or a just consequence.
But it will not be sufficient if it be merely a remote consequence, or
an accidental mischief; for in such a case, as in many others, the
maxim applies, Causu proxima, non remota, spectatur. It must be
a real loss or actual damage, and not merely a probable or possible
one. Where the breach of duty is clear, it will, in the absence of
all evidence of other damage, be presumed that the party has sus-
tained a nominal damage.'

'Story on Agency, § 217, c.
700 | Actions BY PRINCIPAL AGAINST AGENT.

The above principles, quoted from the work of an eminent judge,
are in fact equally applicable to any other case where compensation
is sought for a breach of contract, and present an accurate summary
of the general theory of damages. Another rule, however, must
be added, which we have seen before applies also to the case of

‘sheriffs and attorneys,’ viz., that even though a breach of contract

is proved, still if its performance could have been of no possible
benefit to the plaintiff, and therefore its non-performance could have
caused him no possible injury, the action will altogether fail. A
few cases in illustration of each of these points will be sufficient
upon this branch of the subject.

Sec. 741. When a loss has arisen from his negligence.

If an agent should knowingly deposit goods in an improper place,
and a fire should accidentally take place,by which they were destroyed,
he will be responsible for the loss. And so where a barge, upon
which the plaintiff's goods were placed, deviated from her course,
and during the deviation a tempest occurred, in consequence of
470] which she was lost, it was held *that the owner of the barge

was liable for the value.* In both of these cases the fire
and the tempest might equally have caused the loss had the defend-
ant performed his duty. But Tmpat, O. J., stated the answer to
the objection to be, that no wrong-doer shall be allowed to quality
or apportion his own wrong, and that as a loss has actually happened
while his wrongful act was in operation and force, and which is
attributable to his wrongful act, he cannot set up as an answer to
the action the bare possibility of a loss, if his wrongful act had
never been done. It might admit of a different construction, if he
could show, not only that the same loss might -have happened, but
that the same loss must have happened if the act complained of had
not been done. So where a party has undertaken to insure goods,
and has neglected to insure them altogether,‘ or has insured them so
negligently, that the plaintiff cannot recover agaiust the underwriters,
he will be liable for all the loss that has actually happened.’ Accord-
ingly where a broker, employed to effect insurances, omitted to

1 Ante, 605, 609. 4Ex parte Bateman, 20 Jur. 265;
2 Story on Agency, § 218; Caffreyo, 251. J. Bankr. 19.

Darby, 6 Ves. 496. 5 Mallough v. Barber, 4 Camp. 150;
3 Davis v. Garrett, 6 Bing. 716. Park ». Hammond, id. 344; Holt, 86;

8. C., 6 Taunt. 495.
Aotions By Prinoreat against AGENT. 701

communicate a material letter, in consequence of which the assured
failed in actions against some underwriters, and offered the broker
the defense of others; and on his refusal, without further consult-
ing him, made restitution to others who had paid the losses without
suit, it was held that the assured might recover against the broker
as well as the amount of the losses so repaid, as of those which he
had never recovered.' And so, where a party employed to buy goods
of a particular quality for another, directs an agent to execute the
commission, and he supplies goods of an inferior quality, in conse-
quence of which the first party is sued by his employer, the measure of
damages in an action by him against the sub-agent is the amount of
damages and costs that he has been forced to pay. If the goods
have been refused by the party who originally contracted to purchase
them, the original agent will be required to undertake to [471]
assign the goods to his *sub-agent, or to sell them and ac-
count to him for the produce.’

Sec. 742. Actual loss furnishes the measure of damages.

In all these cases the actual loss is the measure of damages, and
this measure may vary according to the time at which the action is
brought. This point was a good deal discussed in a recent case, the
facts of which have been very fully stated in an earlier chapter.”
There, as will be seen by reference to the statement given, the
owners of the ship resisted the action by the charterers, on the
ground that the damages to which they were entitled for breach of
the agreement to insure, entered into with them by the charterers,
were a liquidated amount, viz., the value of the freight which was
to have been insured. In support of this doctrine, a judgment of
Wasuineton, J., was quoted. He says, “ The law is clear, that if a
foreign merchant, who is in the habit of insuring for his corre-
spondent here, receives an order for making an insurance, and
neglects to do so, or does so differently from his orders, or in an in-

: Maydew-v. Forrester, 5 Taunt. 615.

2 Mainwaring v. Brandon, 8 Taunt.
202. A broker negotiating a sale
between seller and buyer is not re-
sponsible for the quality, though em-
ployed by the purchaser to ship the
cargo. Zwilchenbart v. Alexander, 1
B. & 8. 234; L. J. Q. B. 254, Ex.
Ch. Recently, where an agent im-

properly parted with the possession of
the goods of his principal, the latter
recovered the whole value of the

oods. Stearine Co. v. Heintzmann,
17 C. B. (N. 8.) 56. And see Matthews
v. Discount Corporation, L. R., 4 C.+
P. 288.

3 Charles v. Altin, 15 C. B. 46; 23
L. J. Q. P. 197; ante, pp. 375, 376.
702 Actions By PricipaL aGarnstT AGENT.

sufficient manner, he is answerable not for damages merely, but as
if he were himself the underwriter, and he is of course entitled to
the premium.”! But Jervis, C. J., said, “I think this is not the
fair inference from what is there stated. It is not laid down that
the broker, if guilty of negligence in effecting the insurance,
becomes himself an insurer, and liable to pay the exact amount for
which the insurance was or ought to have been effected, less the
amount of premium. If so, what is the premium, which, as a
matter of law, is to be deducted? It clearly must mean that the
amount of the loss is the reasonable, not the ascertained legal
measure of. damages which the party is entitled to. That is, in
effect, the principle upon which the damages would be ascertained
here. Ifthe broker has been guilty of negligence, it is but just
and reasonable that the customer should recover against him the
[#472] amount *of the loss, deducting what would be paid for pre-

miums ; in other words, that he should be recompensed to
the extent to which he has been damnified by his agent’s negli-
gence. But it is not a positive rule of law.”* And Mautgs, J., in
a judgment from which I have quoted before,’ pointed out that the
action would lie at any moment after the negligence charged, and
that the measure of damages might be a continually varying sum,
according to the facts that had occurred up to the time the action

was brought.

Sec. 743. Damages must be the necessary result ; and not be too remote.

The damages must of course be the necessary result of the de-
fendant’s neglect of duty. Therefore, where the plaintiff had been
nonsuited in an action against the underwriters, on the ground of
concealment of material information, and claimed in the suit against
his agent to include the cost of the action on the policy, Lord
Expon said that there was no necessity to bring that action to entitle
the plaintiff to recover, and as it did not appear that the action on
the policy was brought by the desire or with the concurrence of the
present defendant, he ought not to be charged with the costs of it.‘

1DeTastett o. Crousillat, 2 Wash. B. (N.8.) 106; 26 L. J. C. P. 258;

Cc. C. R. 182. ante, p. 376.
+ 215. B. 63. See, also, as to the 3 Ante, p. 376.
measure of damages being not neces- ‘Seller v. Work, Marsh. Ins. 243,

sarily the whole amount of the insur- 4th ed.
ance money, Cahill ». Dawson, 3 C.
»

Actions By PrIncIPAL aGainst AGENT. 7038

The damages must also be the proximate and natural result of the
neglect. Therefore, where an agent is directed to invest the funds
of his principal in a particular stock, and he neglects to do so, and
the stock thereupon arises, the principal is entitled to recover the
enhanced value, as if the stock had been purchased. So, if an agent
improperly withholds the money of his principal, he is liable for the
ordinary interest of the country where it ought to be paid, and the
incidental expense of remitting it, if it ought to be remitted. But
he is not responsible for remote consequences that may accrue, such
as loss of credit, or suspension of business by the principal, caused
by the delay in payment.' So, where an agent at Leghorn, having
funds of his principal in hand, was directed to invest part of them
in tiles and part in paper, and to ship the cargo for Havana; he in-
vested the whole in paper, which, *on the ship’s arrival, sold [*473]
at a loss, whereas the tiles would have realized a profit. The
defendant claimed to have the damages estimated at the value of
the money which ought to have been invested in tiles at Leghorn,
and not at the value they would have sold for at Havana. The
court decided against him. They said this measure would only be
correct if the breach of contract consisted in the non-payment of the
money, and not in the failure to invest that sum in tiles. Specu-
lative damages, dependent on possible successive schemes, ought
never to be given ; but positive and direct loss, arising plainly and
immediately from the breach of orders, may be taken into the esti-
mate. Thus, in this case, an estimate of possible profits to be de-
rived from investments at the Havana, of the money resulting from
the sale of the tiles, taking into view a distinct operation, would
have been tu transcend the proper limits which a jury ought to
respect ; but the actual value of the tiles themselves, at the Havana,
affords a reasonable standard for the estimation of the damages.”

Sec. 744. Nominal damages. When defendant may show that no loss could
have taken place.

Breach of contract, prima facie, involves a right to recover nomi-

nal damages, even though no actual loss is proved, or even suggested ;

as, for instance, where ‘the action was by a customer against a banker

- ! Short 0. Skipwith, 1 Brock. 103; 2 Bell v, Cunningham, 3 Peters, 69,
Story on Agency, §§ 220, 221. 85.
104 Actions By PrincrpaL AGAInsT AGENT.

for dishonoring his check.’ In such a case, however, lately substan-
tial damages were given by a jury, and very fairly, because the
injury to a man’s creglit may not be the less real, because it was not
capable of proof.” But when the agent can show that under no cir-
cumstances could any benefit to the principal have followed from
obedience to his orders, and therefore that disobedience to them has
produced no real injury, the action will fail. Therefore, if an agent
is ordered to procure a policy of insurance for his principal, and
neglects to do it, and yet the policy, if procured, would not have
entitled the principal, in the events which have happened, to recover
the loss or damage, the agent may avail himself of that as a com-
plete defense. A fortiort, where the principal would have sus-
tained a loss or damage, if his orders had been complied with.

Accordingly, *if the ship to be insured has deviated from
i lien voyage; or the voyage or the insurance is illegal; or the
principal had no insurable interest; or the voyage, as described in
the order, would not have covered the risk; in all such cases, the
agent, though he has not fulfilled his orders, will not be responsible.’
In estimating too the amount of benefit which might flow from the
defendant’s obedience to his orders, the court will not take into con-
sideration matters of mere speculation. Therefore, where the plain-
tiff directed the defendant to effect an insurance on slaves, to which
he was entitled in lieu of wages as mate on board a ship, and the
ship was lost, it was held that he could not recover against the agent
for neglect to insure ‘the slaves, as not being an insurable interest.
And it made no difference that in point of fact these slaves were
frequently the subject of insurance at Liverpool, where the loss was
always paid by the underwriters, without disputing the question.
The court were clearly of opinion that the plaintiff could not recover
in this action, more than he could have recovered in an action
against the underwriters.*

Sec. 745. Agent bound to account for profits.

Another ground of claim by principal against agent arises out of
the well-known rule of equity, that an agent cannot, without the

" Marzetti v. Williams, 1 B. & Ad. ? Rolin vo. Steward, 14 C. B. 595.
415. And see Fray v. Voules, 1 EB. & 3 Story’s Agency, . 222.
E. 839; 28 L. J. Q. B. 232; ante, p. 4 Webster 0. De Tastet, 7 T. R. 157
611, n. 5.
Actions py AGENT AGAINST PRINCIPAL. 705

knowledge and consent of his principal, be allowed to make any
profit out of the matter of his agency beyond his proper remunera-
tion as agent. Consequently any profit that he does so make, he is
liable to account for, and hand over to his principal.’ And in esti-
mating the damages payable by the agent, he will be treated as a
wrong-doer, and a presumption may be made against him, which
could not be made against a person who was not a wrong-doer. For
instance, the agent of a company agreed with the owner of a mine
that it should be sold to the company for a price partly in cash and
partly in paid-up shares. He made a private arrangement with the
agent to give him for his trouble 600 of the paid-up shares. The
company proved a failure, and 500 of the shares remained in the
agent’s hands. It was held that he was liable to account for these
shares, and then the question arose at what value *they [#475]
should be estimated. The court held that as against a
wrong-doer it must be assumed that the shares could have been dis-
posed of for their full amount to solvent persons, who could have
paid up the calls. They, therefore, affirmed an order by which the
agent had been directed to pay over their full nominal value.’

IV. Actions by agent against principal.

Actions of this sort are generally brought by the agent for his
remuneration, and seldom raise any special question as to damages.
There are, however, two matters which may be referred to with
advantage. They are, claims by an agent, employed to sell for a
commission, and claims for an indemnity in consequence of loss
incurred by carrying out the instructions of his principal.

Sec. 746. Commission on sale.

The theory of a sale by commission is, that the agent is only paid
for success. If no sale is effected, or if it is effected without his
intervention,’ he gets nothing. This is the established rule by usage

’ Parker ». McKenna, L. R., 10 Ch. director for fraudulent statements,
96; 44 L. J. Ch. 425; Hay’s Case, L. whereby a person was induced to take
R., 10 Ch. 593; 44 L. J. Ch. 721. shares which had a value until the

2 McKay’s Case, 2 Ch. D. 1; 45 L. fraud was discovered, and then be-
J. Ch. 148; De Ruvinge’s Case, 5 Ch. came worthless; Twycross v, Grant, 2
D. 806; 46 L. J. Ch. 360; Pearson’s C. P. D. 469; 46 L. J. C. P. 686.
Case, 5 Ch. D. 336; 46 L. J. Ch. 339. 3 See, as to what amounts to inter-
Directly the opposite presumption vention, Mansell v. Clements, L. R.,
would be made in an action againsta 9O. P. 139,

89
706 Actions By AGENT aGainst PRINCIPAL.

in the case of ship-brokers and house agents.! In other cases, where
the rule is not absolutely so settled, the presumption would be to the
same effect, unless there was something in the special agreement to
lead to a contrary conclusion.” On the other hand, if the sale has
been effected by means of the agent, he is entitled to his full com-
mission, though he has not been put to either trouble or expense.*

Sec. 747. Revocation of authority.

The cases in which difficulty has arisen have been those in which
the agent, after incurring trouble or expense, has been prevented,
by a revocation of his authority, from proceeding to earn his com-
mission by effecting a sale. It is quite settled that the principal
[#476] may at any time before a sale recall the *agent’s authority,

and that the interest which the agent has in effecting a sale
is not such an interest as prevents such a revocation.‘ Where there
has been a revocation, in the case of house-agents or ship-brokers,
any trouble or expense they have previously incurred goes for noth-
ing, and in the absence of a special contract, gives them no claim
against their principal for reimbursement. But in other cases, an
authority to sell cannot, in general, be revoked. without reimbursing
the party to whom it is given for the labor he has bestowed, or the
expense he has been put to. But this right must always depend
upon the terms of the contract; and though a general employment
may carry with it the right of revocation upon payment for what
has been done under it, yet it is perfectly possible that there may
be a contract of employment of a qualified nature, to the effect that
if the work be not completed there is not to be 4ny payment.°

Sec. 748. Agent entitled to indemnity.

As to an agent’s right to an indemnity, the rule is, that if an agent
has incurred losses or damages in the course of transacting the busi-
ness of his agency, or in following the instructions of his principal,
he will be entitled to full compensation therefor.’ But in order to

1 Read v, Rann, 10 B. & C. 438; 4 Smart 0. Sandars, 5 C. B. 895; 17
Simpson v, Lamb, 17 C. B. 603, 616; L. J.C. P. 258; Taplin o. Florence,

25 L. J. C. P. 113, 116. 10 OC. B. 744; 20 L. J.C. P. 187;
2 See Alder v. Boyle, 4 C.B. 685; 16 Campanari ». Woodburn, 15 C. B. 400;
L. J. ©. P. 232. 24 L. J. 0. P. 18.
3 Mansell v. Clements, L. R., 9 C. 5 Simpson ». Lamb, 17 C. B. 6038;
P. 189. 25 L. J. C. P. 118.

§ Story’s Agency, § 339.
Actions By AGENT AGAINST PRINOIPAL. %07

entitle an agent to recover from his principal under such cireum-
stances, he must show, first, that the loss arose from the fact of his
agency; secondly, that he was acting within the scope of his au-
thority; and, thirdly, that the loss was not attributable to any fault
or laches on his part.1 Consequently, where an agent, acting under
the orders of his principal, has made a contract, which his principal
has not enabled him to carry out, or has innocently warranted goods,
which do answer the warranty, or has sold goods which turn out to
be the property of a third person, if he is sued, he may recover
from his principal the damages and costs which he has been com-
pelled to pay, or any other loss he has necessarily incurred.’ But if
the losses or damage are *casual, accidental, oblique or
ica a é [#477]
remote, the principal is not liable. The agency must be the
cause, and not merely the occasion of the loss, to found a just claim
for reimbursement.® For instance, a stockbroker bought shares for
his principal for the 15th July, and on that day, by his principal’s
orders, carried over the transaction to the next settling day. The
result was, that he became liable to pay the difference of price
according to the rates of the 15th July. Subsequently the stock-
broker became insolvent. The consequence was, that all his trans-
actions were closed, and he became liable to pay the difference of
price calculated at the date of closing. It was held, that the princi-
pal was liable to pay the first difference, but not the second, because
that loss was brought on neither by the orders nor by the default of |
his principal, but by his own insolvency, for which his principal was
not accountable. It was’ something completely collateral to the
business on which his principal had employed him.‘ Nor. could an
agent recover damages to which he had been put in consequence of
warranting goods without authority to do so.° Nor where he had
incurred unnecessary expense by carelessness or mistake in law.°
Per Right Hon. T. Pemperton Hill, L. R., 8 Ch. 921; L. R., 18 Hq.!
LetenH, Frixione »v. Tagliaferro, 10 182; 48L. J. Ch. 551.
Moo. P. C. 175, 196. 3 Story’s Agency, § 341.
? Frixione ». Tagliaferro, ubi sup.; * Duncan ». Hill, L. R., 8 Ex. 242;
Southern v. How, Cro. Jac.468; Adam- 42L. J. Ex. 179.

son »v. Jarvis, 4 Bing. 66; Lacey v. 5 Southern ». How, Cro. Jac. 468.
6 Capp 0. Topham, 6 East, 392,
708 Pieapine Specian Damace.

[*478] CHAPTER XXXIX.
PLEADING SPECIAL DAMAGE.

Src. 749. Special damage must be alleged when it is the essence of the

action.

750. Particular instances of damage.

751. Special damage cannot be proved unless laid.

752. Statement of special damage must be as full as the case will
admit of.

753. Distinction between particular and special damage.

754. Damages must be stated correctly.

755. Interrogatories.

756. Debt.

Sec. 749. Special damage must be alleged when it is the essence of the action.

We may now pass from the principles which regulate the measure
of damages to the rules of pleading and practice in relation to them.
This part of the subject naturally resolves itself into three heads,
which I propose to consider in the three remaining chapters. The
first has regard to what is required of the plaintiff, in stating and
specifying the grounds of his claim. The second relates to the mode
in which the jury must proceed in assessing damages under the
various circumstances of the case; the consequences of any error
into which they may fall, and the manner in which it may be recti-
fied. Under the third head, I shall examine the power which the
court possesses to guide, alter, or review the verdict, particularly as
to its amount.

The first head, taken in its full extent, would include nearly the
whole science of pleading. Of course, the present inquiry is of a
very much narrower nature, and relates only to the occasions on
which damages must be specially pleaded, and the degree of minute-
ness required.

Special damage must always be expressly averred, and proved,
when it is so much the gist of the action, that without it no suit
could be maintained ; as, for instance, in an action against a return-
ing officer at an election, for holding a scrutiny contrary to statute
Putapine Sprcta, Damage.

709

6 & 7 Vict., ch. 18, § 82, whereby the plaintiff was delayed and hin-
dered in his right of voting;’ or in an action by a master for the

1 Pryce v. Belcher, 3 C. B. 58.

Special damage must be specially
alleged solely for the purpose of giv-
ing the defendant notice of the plain-
tiffs claim with regard to it, while the
defendant is held to take notice, with-
out any special allegation, of such
damage as is the necessary consequence
of his act. Bristol, etc., Co. v. Grid-
ley, 28 Conn. 201; Olmstead v. Burke,
25 Til. 86; Warner v. Bacon, 8 Gray
(Mass.), 397; Burrell v. New York,
etc., Co., 14 Mich. 34; Solms ». Lias,
16 Abb. (N. Y.) Pr. 311; Hallock ».
Belcher, 42 Barb. (N. Y.) 199; Hart
». Evans, 8 Penn. St. 13; Laing 2.
Colder, id. 479; Alston 0. Huggins, 3
Brev. (5S. ©.) 185.

No special damages, except interest,
are recoverable under either of the
counts for money had and received,
or for money paid. Hanna v. Pegg,
1 Blackf. (Ind.) 181.

In trespass for killing a mare, dam-
ages for the trouble of taking care of
the wounded beast and rearing two
colts she was suckling, not the direct
necessary results of the trespass, can-
not be given unless specially alleged.

And where evidence to the above
effect was given, and the jury gave
much more than the average estimated
value of the mare, and more than the
highest estimate in the testimony, it
was presumed that they gave the
above improper damages. Teagarden
o. Hetfield, 11 Ind. 522. ‘

In an action on a note where there
isa promise to pay more than legal
interest after maturity, by way of pen-
alty, such sum cannot be recovered,
without an allegation of special dam-
age. Wilson v. Dean, 10 Iowa, 482.

In a case against a carrier, for an
injury occasioned by his negligence,
only such damages can be recovered
as result necessarily from the act com-
plained of, unless special damages are
alleged and proved.

An unmarried woman cannot recover
damages, on account of her prospects
of marriage being lessened by injury
which she has received, unless such
special damage be alleged and proved.
Hunter v. Stewart, 47 Me. 419.

In an action for falsely and malic-

iously giving information that the
plaintiff was about to offer for sale un-
wholesome meat, the jury cannot as-
sess damages for an injury to the
plaintiff's reputation, without an aver-
ment that the defendant stated that
the plaintiff knew the meat to be un-
wholesome. Hemmenway ». Woods,
1 Pick. (Mass.) 524.

If the statement of each item of
special damage commences as if it
were a new count, and it is manifest
that it was the purpose of the pleader
toset them out as special damages,
all constituting one count, such state-
ment will not control the obvious
purpose of the pleader. Burnside v.
Grand Trunk R. R. Co., 47 N. H. 554.

But where damages necessarily re-
sult from a breach of contract on the
part of the defendant, they need not
be specially stated in the declaration.
Laraway v. Perkins, 10 N. Y. 371;
Stevens o. Lyford, 7 N. H. 360;
Hutchinson v. Granger, 13 Vt. 386.

In an action to recover damages for
killing a horse, it was held that the
value of the horse at the time of his
death was the measure of damages,
but that it was competent for the
defendant to show the condition of
the horse by witnesses who had seen
him at any reasonable time before the
killing, ranging within three months,
and then, after proving by other wit-
nesses that his condition was un-
changed, the former might testify to
the value of the horse at the time of
the killing, on the hypothesis that his
condition was the same as when they
saw him. Toledo, etc., R. Co. ».
Smith, 25 Ind. 288. So in an action
by the keeper of a livery-stable to
recover damages for an injury done
to two stallions by the communication
of a distemper to them by a horse of
the defendant, which the plaintiff had
been induced to receive into his stable
by the defendant’s representation that
the horse had recovered from the dis-
temper and could not communicate
the disease to other horses, the court
permitted the plaintiff to prove the
profit he would probably have derived
from the services of one of the
stallions during the foaling season,
710 Pizapine SprciaL Damace.

beating of his servant;' or by a relation for the seduction of a
[*479] female, per quod *servitium amisit ;* or in cases of slander,

where the words would not of themselves be actionable ;°
or for a matter of general nuisance or injury to the entire public.‘
In such a case as that last mentioned, the damage must’ be an actual,
tangible one to the plaintiff in reference to his existing interest.
Therefore, where the action was for fixing an obstruction in a public
navigable river, and impeding the access to a house abutting upon
it, it was held not to bea sufficient allegation of special damage to
say that the plaintiff was reversioner, and had a right to the free
navigation of the river for the enjoyment of the premises by his
tenants, and so was injured in his reversionary interest. The court
said, “If, indeed, an obstruction of a public road appeared to be of
a permanent nature, or professed, either by notice affixed, or in any
other way, to deny the public right, and so led to an opinion that no
road was there, the value of the house might be lowered in public
estimation, and so pecuniary loss might follow, for which an action
would lie. But that is a peculiar state of things, which ought to be
distinctly set forth, and by no means arises from the naked fact that
while the plaintiff’s house was in the hands of his tenant, a public
road had been obstructed by the defendant.” °

Sec. 750.. Particular instances of damage.

Tt is not, however, necessary to state or establish particular in-
stances of damage. Therefore a declaration for obstructing the
access to the plaintiff’s house, whereby divers persons who would
otherwise have come to the house, and taken refreshment there
were prevented, was held sufficient without naming any one. And
‘so in an action for fraudulently using the plaintiffs trade-marks it
was considered sufficient, at all events after verdict, to allege gen-
erally that by means of the fraud the plaintiff was deprived of the
sale of divers large quantities of goods, and lost the profits that
but for his incapacity from the disease, for the consideration of the jury, as
and it was held, that the evidence, an aid in estimating them. Fultz o.

though not admissible definitely to fix Wycoff, 25 Ind. 321.
the measure of damages, was proper

1 Mary’s case, 9 Rep. 113. 4Dobson v. Blackmore, 9 Q. B.
2 See ante, p. 653. 991; Dimes v. Petley, 15 Q. B. 276.
3 Malachy ». Soper, 3 Bing. N. C. 59 Q. B. 1004.

871. 6 Rose 2. Groves, 5 M. & G. 613.
Prieapine Sproran Damage. 11

otherwise would have accrued to him therefrom. Mavtz, J., said,
“Tt clearly is no ground for arresting the judgment that damage is
alleged too generally.” '

Sec. 751. Special damage cannot be proved unless laid.

*In all other cases, whether the action be on a contract or in
tort, if the facts involve a legal injury, no actual damage need be
stated.* But then no damages, beyond those which the law infers, can
be recovered for, unless they are specially stated. Under the old alle-
gation of alia enormia in trespass, nothing could be given in evi-
dence which could be stated with decency in the declaration.’ Ac-
cordingly, in an action of trespass and false imprisonment, the
plaintiff was not allowed, without a special allegation, to prove that
he was stinted in his allowance of food during his detention,‘ or
that his health had suffered from the confinement,* or that he had
.been remanded by a magistrate.° And so in an action for taking
goods, where money has been paid to recover them, the payment
ought to be alleged as special damage.’ A fortiori, matter which
itself would be a distinct ground of action must be especially
averred. Hence in an action on the case for an excessive distress,
in which no mention occurred of any sale of the goods, the plaintiff
was only allowed to recover damages in respect of the detention up
to the time of the sale, and not in respect of the sale, though it ap-
peared on the trial that the goods were sold for less than their real
value.’ In one old case Lord Raymonp took a distinction upon this
point in actions of slander, between words which are actionable in
themselves, and those which are only actionable with special dam-
age. In the latter case, he said that evidence of special damage is
allowed, though the particular instances of such damage are not
specified in the declaration; but in the former case, particular in-
stances of special damage shall not be given in evidence, unless
stated in the declaration ;° but this distinction is no longer recog-
nized.”

[*480]

' Rodgers v. Nowill, 5 C. B. 109. ™ Cowper, 418.

? See ante, pp. 5-13. 8 Thompson v. Wood, 4 Q. B. 493.
% Sippora v. Basset, 1 Sid. 225. ® Browning v. Newman, 1 Stra. 666.
“ Lowden v. Goodrick, Peake, 46. 101 Wms. Saund. 243 d; 1 Wms.

5 Pettit ». Addington, Peake, 62. Notes to Saund. 322.
6 Holtum v. Lotun, 6 C. & P. 726.
712 Preapine Srecran Damaae.

So in trover, special damage, to be recoverable, must be
[#481] *specially laid.1_ In contracts, too, there are certain damages
which the law will presume, as, for instance, in an action for
not delivering goods, that the plaintiff had to buy others at a loss ;
or in an action on a warranty, that the article really given was in-
ferior to that which it was warranted to be. The extent of the loss
must be proved; but no notice need be given of the species of loss
which will be set up. But it is different where the injury com-
plained of is of a merely secondary and consequential damage, as,
for instance, that the plaintiff was sued for selling the same animal
again, with a similar warranty ;* or that he incurred expense in in-
vestigating the title of the defendant to land, which the latter had
contracted to sell, but could not, for want of title.*

Sec. 752. Statement of special damage must be as full as the case will ad-
mit of.

As the object of stating special damage is to let the defendant
know what charges he must prepare to meet, the statement must
always be as full and specific as the facts will admit of. Accordingly,
in an action for an irregular distress, whereby the plaintiff had lost
divers lodgers, without naming any, Lord ExLensoroven rejected
evidence that he had in fact lost one, because the name was not
alleged, observing that the number was not so great as to excuse a
specific description on the score of inconvenience.* The same reason
fairly applied to a general statement that a party had, in conse-
quence of the alleged wrong, lost several suitors,° or the sale of his
lands ;° but the rule seems to be carried beyond just limits when it
is said that an allegation that a party has lost divers customers is
insufficient, because they ought to have been named.’ There is
much more common sense in a later decision. The minister of a
dissenting congregation alleged that, in consequence of the slander-
ous words of the defendant, “the said persons frequenting the said
chapel have wholly refused to permit him to preach, and have with-
drawn from him their countenance and support, and have discon-

1 Bee ante, p. 500. * Barnes v. Prudlin, 1 Sid. 396.
° Lewis vo. Peake, 7 Taunt. 153. 8 Lowe v. Harewood, Sir W. Jon.
* Hodges v. Earl of Litchfield, 1 196.

Bing. N. C. 492. ‘Hunt ». Jones, Cro. Jac. 499; 1

4 Westwood ». Cowne, 1 St. 137. Roll. Abr. 58; Bull. N. P. 7.
Preaping Sproran Damace. 713

tinued giving him the gains and profits which they had
usually *given, and would otherwise have given.” Lord
Kenyon held this sufficient, asking, how could he have stated the
names of all his congregation?! The question would have been
quite as difficult to answer, had it been asked in the former case.

[#482]

Sec. 753. Distinction between particular special damage.

Possibly the real distinction may be that taken by CrusswELt,
J.,’ between particular and special damage, where he said, “In an
action for slandering a man in his trade, when the declaration alleges
that he thereby lost his trade, he may show a general damage to his
trade, though he cannot give evidence of particular instances.” *°
The great additional weight which the jury would lay upon one
instance specifically proved makes it only fair that notice should be
given that the proof will be attempted. A mere general loss may
well be announced in the same general way as that in which alone
it can be proved. An action was brought for not performing a
contract to let a house, whereby plaintiff had sustained loss, and
been obliged to hire other premises at great cost and expense for
rent and charges. It appeared that the premises, which were in
Regent street, had been taken for the millinery business, for which
they were well suited, and that the plaintiff, not being suffered to
occupy them, had sustained considerable loss from the passing by
of the profitable season of the year. It was held that this evidence
was admissible; Ricuarps, O. B., said there was in fact no special
damage as such proved. The object of the witness’s testimony was
to show that the plaintiff had suffered inconvenience. And Gra-
Ham, B., remarked, that loss of customers, and general damage
occasioned thereby, might have been given in evidence under the
declaration, for it charges general loss, without specifying any par-
ticular individual whose custom had been lost ; and it was competent
to the plaintiff to show certain damage sustained by breach of
the agreement, without stating his loss more specifically in the
declaration.*

! Hartley v. Herring, 8 T. R. 130. H. & N. 251; ante, p. 682; and

> Rose v. Groves, 5 M. & G. 618. M’Loughlin ». Welsh, 10 Ir. L. R.

* And see Ashley v. Harrison, 1 Esp. 19.
48; ante, p. 631; Evans »v. Harries, 1 4 Ward v. Smith, 11 Price, 19.
90
414 Pieapine Sprora, Damage.

Sec. 754. Damages must be stated correctly.
[483] *The same principle which requires particularity of state-
ment also calls for accuracy of allegation. An action for a
nuisance, resulting from an obstruction to a water-course, stated that
it was caused by the erection of a mound of earth by the defendants.
It appeared that the mound of earth would not, of itself, have
obstructed the water, but that it crumbled away and was trodden
down, so as to cause the effect. It was held that the evidence did
not support the declaration, as it alleged an immediate act of the
defendants, whereas a consequential injury was all that was proved.’
And so in an action for false imprisonment, where it was laid as
special damage that plaintiff had been forced to pay a large sum of
money for costs, and the evidence was that he had employed an
attorney, but had not paid him; it was held that the damage was
not proved. But the court said, that as to the money which the
attorney had actually laid out for him, the averment was sufficient,
for a man might well say that he had been forced to pay that which
his agent had been forced to pay for him. In respect of the
‘money advanced for him, he was in the same situation as if he had
borrowed it to pay it over.”

Of course, if properly claimed, damages in respect of the legal
liability to the attorney could have been recovered though his bill
had not been paid.” Accuracy of allegation is of less importance
now when amendments are allowed in all cases where the opposite
party would not be unjustly prejudiced.

Sec. 755, Interrogatories.

It may be remarked here, though it relates to a matter of practice
rather than of pleading, that where a defendant’s object is to pay
money into court in satisfaction of the plaintiffs cause of action, he
has been allowed to interrogate the plaintiff as to the particulars of
the damage sustained by him.*

Sec. 756. Debt.
The mode of pleading with a view to damages in cases within the
provisions of 8 & 9 Wm. III, ch. 11, § 8, has been noticed in the

chapter on debt.*

' Fitzsimons ». Inglis, 5 Taunt. 534. 4 Horne », Hough, L. R., 9. P. 135;
* Pritchet v. Boevey, 1C. &M.775; 438 L. J. C. P.70. But see Jourdain v.

Jones ». Lewis, 9 Dowl. 148. Palmer,L. R.,1 Ex.102; 35 L. J. Ex. 69.
3 Ante, p. 148. 5 Ante, p. 334.
JUDGMENT BY CONFESSION. 15

*CHAPTER XL. [*484]
ASSESSMENT OF DAMAGE.

Src. 757. Judgment by confession.

758. When a reference to the master will be allowed.

759. Evidence upon a writ of inquiry.

760. Amount due must be proved unltéss admitted.

761. Judgment by default.

762. Assessing damages upon several counts.

763. Or upon the same count containing several demands.

764, In actions for slander.

765. New procedure.

766, Separate assessment in detinue.

767. Prospective damages.

768. Misjoinder of counts.

769. Where the action is against several, damages must be assessed
generally.

770. New procedure.

771. Contrary decisions.

772. New procedure.

773. Where some pay money into court.

774, How assessment of damages severally might be remedied.

775. Judgment by default against all.

776. Judgment by default against one in contract.

777. In tort.

778. Plaintiff could not be nonsuited against those who appeal.

779. Former recovery in tort.

780. Verdict for larger damages than are claimed.

781. Double and treble damages.

782. When a writ of inquiry may assess damages in place of the prin-
cipal jury.

783. Confession. Demurrer to evidence. Replevin.

Sec. 757. Judgment by confession.

We have now discussed all the preliminary steps necessary to a
judgment for damages ; the mode of pleading, the species of evidence
that may be adduced, and the rules of law that ought to be laid
down for the guidance of a jury. It now remains to consider the
practical machinery by which the process is worked out.
716 JUDGMENT BY CONFESSION.

Where the case comes on for open trial, the jury who try the
cause, of course, assess the damages also, and there the matter ends.
But the case may never be tried in open court at all, or only part of
it may be so tried, or only against some of the defendants. Various
distinctions also may arise, according as the action is against one or
several. It will be simpler first to examine the mode of assessing
damages where the action is against one, and then to inquire into
the further complications which may arise, where several defendants
are joined.

The defendant may confess judgment. This he may do either
by means of a cognovit given beforehand, authorizing an attorney
[485] to confess judgment and mark execution *against him for a

particular amount, or by an express plea, in which he avows
that he has no defense to the action, or by implication; as, for
instance, where an executor pleads plene administravit, or plene
administravit preter. In all these cases, where the form of the
confession admits that an ascertained sum is due,' judgment is final,
and execution may issue at once for the amount. Where a cogno-
vit was given for the payment of the money by installments, and by
the terms of the arrangement the plaintiff was not to be at liberty
to enter up judgment, or issue execution unless default was made in
payment of a certain sum, with costs, by installments, it was held
that on default being made in payment of any installment, execution
might issue for the whole amount, in the absence of express words
to the contrary.” But where the whole sum does not become due
upon default in any installment, execution may still be issued for
each as it becomes due and remains unpaid.*

Where the amount for which judgment can be signed is not ascer-
tained, it will be necessary either to have a reference to a master, or
to sue out a writ of inquiry.

. Sec. 758. Where a reference to the master will be allowed.

Till lately, the courts were very strict in limiting the cases in
which a reference to the master could be substituted for a writ of
inquiry. They allowed it in actions upon bills of exchange, prom-
issory notes, banker’s cheques, covenant for non-payment of money,

1 See Chit. Forms, 479, 7th ed. Barrett », Partington, 5 B. N. C. 487;

° Rose v. Tomlinson, 3 Dowl. 49; Leveridge o. Forty, 1M. & S. 706.
3 Davis v. Gompertz, 2 Dowl. 407.
RererENcE To THE Master. 17

and the like, where it was only necessary to compute the amount of
principal and interest due. But they refused it, where the action
was on a bill of exchange for foreign money, or on a foreign judg-
ment, or on a bond to save harmless, or on a covenant to indemnify,
or on a bottomry bond, or for calls due on railway shares, or even
in an action upon a judgment recovered on a bill of exchange
where interest was sought for, or in an assumpsit for a certain sum
due upon an agreement.! Now, however, by the common-law
procedure act, 1852, § 94, “In actions in which it shall appear to
the court or a judge that the amount *of damages sought to [#486]
be recovered by the plaintiff is substantially a matter of
calculation, it shall not be necessary to issue a writ of inquiry; but
the court or a judge may direct that the amount for which final
judgment is to be signed shall be ascertained by one of the masters
of the court.” It is plain that all the cases above mentioned could
now be referred, and matters of even a more complicated nature
seem to have been intended by the learned commissioners to be dis-
posed of in the same way, the example given in their report being
that of an action for damages for the non-repair of a house, or the
like.? Such actions are now constantly referred.

Sec. 759. Evidence upon a writ of inquiry.

The proceedings upon a writ of inquiry do not come within the
plan of this work. As to the amount which may be recovered, I
may observe that the plaintiff must always recover nominal dam-
ages, for the writ of inquiry assumes that the cause of action has
been proved ;3 therefore where the action is on a lease, the defend-
ant is estopped from denying its execution.’ Nor can he object to
the want of a stamp on the written contract. Nor prove absence
of consideration for a bill or note.’ Nor can he show any thing in
mitigation of damages, which might have been pleaded; as, for in-
stance, that he has a set-off,’ or that he has paid part of the demand.°
Nor need the plaintiff prove his interest in a policy of insurance,’

1 Chit. Archb. 929, 9th ed. * Banbury Union »v, Robinson, Dav.

21st Rep. 411. & Mer. 92,

3 De Gaillon v. L’Aigle, 1 B. & P. * Shepherd o. Charter, 4 T. R. 275.
868; Dods v. Evans, 15 C. B. (N. 8.) 1 Caruthers v. Graham, 14 East, 578.
621. ° Lane v. Mullins, 2 Q. B. 254.

4 Collins 2. Rybot, 1 Esp. 157. ® Thellusson v. Fletcher, 1 Doug.
316.
718 Warr or Inqurry.

nor even produce the document; as for instance, a bill of exchange,
upon which he sues.’

Sec. 760. Amount due must be proved unless admitted.

The state of things, under which a writ of inquiry is brought,
assumes not only that a cause of action, but that the cause of action
laid by the plaintiff, is proved. Where the amount claimed is such
an essential part of the description of the cause of action, as to be a
material and traversable statement, as for instance the amount of a
bill of exchange, no evidence is required on the writ of inquiry * to
[#487] entitle the plaintiff to *recover it. But it is otherwise

where the distinct sum claimed is not so laid as to be in
issue. If a plaintiff declared for rent under a lease, laying the
amount under a viz., and judgment were suffered by default; if
the rent appeared in evidence to be less than was alleged, the
plaintiff would recover only the amount proved to be due.* So in
an action against a carrier for loss of goods, their value and the ex-
pense the plaintiff has been put to must be proved. Where‘ the
action was on a contract to purchase property at a certain large sum
(to wit), the sum of 1727. judgment went by default. The under-
sheriff ruled that the contract must be produced to entitle the plain-
tiff to more than nominal damages. When produced it turned out
not to be stamped. He rejected it on this account, and there being
no other evidence of the amount of loss incurred, ordered a verdict
for nominal damages. The court ruled that he was wrong in re-
jecting the instrument for want of a stamp; but on the other point
Parteson, J., said, “He thought there would be great difficulty
in saying the under sheriff wag wrong.” * And so, although the
amount of a bill may be recovered without producing it, interest
upon it from maturity cannot.’ On the same principle, though
judgment by default in an action for use and occupation admits that
defendant occupied a house of the plaintiff's, he may show that he
did not occupy the particular house with which the plaintiff is try-

1 Lane o. Mullins, 2 Q. B. 254. 6 Hutton o. Ward, 15 Q. B. 26;
2 Lane ». Mullins, ubié sup. Doyl v. Duffy, 6 Ir. L. R. 158, contra.
3 Per Lord Denman, C.J., 2Q. B. In Byles on Bills, 434, 10th ed., it is
923. said: “If interest be sought from a
4 Livingston ». Douglas, 2 Dowl. period before the issuing of the writ,
630, n. it may be necessary to produce the

5 Banbury Union v. Robinson, Dav. bill.”
& M. 92, 97. ;
JuDGMENT BY DerEFavtt. 719

ing to fix him, but the onus of proof is on the defendant.! So in
an action for work and labor, defendant may show that all the
amount charged for was not done at his request.2 And in an
action for mesne profits, where judgment has gone by default, the
plaintiff must prove the whole time during which the defendant
was in possession, and in the absence of such proof can only obtain
nominal damages.?

*On the other hand there are some cases in which the
mere fact of the wrong done, without any proof of the ex-
press loss, might entitle the plaintiff to substantial damages. The
jury, in such cases, as for instance on a writ of inquiry in an action
of libel, may give such damages as they think fit, though no evi-
dence is laid before them."

[*488]

Sec. 761. Judgment by default.

The defendant may let judgment go by default, either for want
of appearance, or for want of a plea.° In the former case, if the:
writ has been specially indorsed, the plaintiff may, on filing an affi-
davit of personal service of the writ of summons, or of notice in lieu
of service, as the case may be, at once sign final judgment, and
issue execution.° Where the writ has not been specially indorsed,
but the claim is for a debt or liquidated demand only, he may, after
complying with the above forms, and filing a statement of the par-
ticulars of his claim, after the expiration of eight days enter final
judgment.’ If the claim is not fora debt or liquidated damages,
but for destruction of goods and pecuniary damages, or either of
them, no statement of claim need be delivered, but interlocutory
judgment’ may be entered, and a writ of inquiry issues to assess the
value of the goods and damages, or damages only, as the case may
be, in respect of the causes of action disclosed by the indorsement
on the writ of summons. The court or a judge may, however,
order that instead of a writ of inquiry the value or amount of dam-
ages shall be ascertained in any wayin which any question arising

‘' Davis v. Holdship, 1 Chit. Rep. 5 See Chit. Archb. 916, 9th ed.; 980,

644, n. 12th ed.
° Williams v. Cooper, 3 Dowl. 204. § Ord. 13, R. 3; Ord. 42, R. 15.
3 Ive v. Scott, 9 Dowl. 993. 7 Ord, 18, R..5.

4 Tripp v. Thomas, 3 B. & C. 427.
720

JUDGMENT BY DEMURRER.

in an action may be tried. Where the defendant nas not delivered
a defense or demurrer within the proper time, judgment may be
signed ; and if the plaintifi’s claim be only for a debt or liquidated
demand, judgment by default will be final. In cases which do
not come within this description, the plaintiff will be driven to a
reference to the master, or a writ of inquiry, or such other
*mode of ascertaining the damages as may be ordered, as
stated above.

_ If the plaintiff's claim be for a debt or liquidated demand, and
also for detention of goods and pecuniary damages, or pecuniary
damages only, and the defendant makes default, the plaintiff may
enter final judgment for the debt or liquidated demand, and also
enter interlocutory judgment for the value of the goods and dam-
ages, or damages only, as the case may be, and proceed as above
mentioned.”

Under the old practice, where the defendant let judgment go by
default as to part of the declaration, and pleaded to the rest, a special
venire was issued, and the jury who tried the issue assessed damages
for the whole.* Under the present practice, the judge would proba-
bly in a simflar manner order the damages for the whole to be as-
sessed by the jury who tried the issues. *

Where a demurrer is allowed, the matter demurred to is to be
deemed struck out of the pleadings, and the rights of the parties are
to be the same as if it had not been pleaded.° Therefore, a judg-
ment for the plaintiff upon demurrer is interlocutory or final, in
the same manner and in the same cases as a judgment by default.°
And the same mode is to be pursued in assessing damages.

Now that the court has complete control over the proceedings, it
is useless to consider the rights which the plaintiff had under the
old procedure, of assessing damages absolutely or contingently, in
-eases where there were demurrers to parts of the claim and defenses
or default as to the remainder. The plaintiff no longer has the

[#489]

1 Ord. 18, R. 6. Where damages 2 Ord. 29, R. 6.
for mesne profits, arrears of rent, or 3 Heydon’s Case, 11 Rep. 5.
damages for breach of contract are in- 4 Ord. 29, R. 4.
dorsed upon a writ for the recovery of > Ord. 28, R. 10.

land, the plaintiff enters judgment for
the land, and proceeds as above for
the other claims. Ord. 13, R. 8; Ord.
29, R. 8.

° See, as to the old practice, Chit.
Arch. 933, 12th ed.; Chitt. Forms,
497, 10th ed.
SrveraL Counts on THE sAME CausE or ACTION. 721

option whether the issues of law or fact shall be tried first, and the
power which he had of entering a nolle prosequz as to certain: parts
of his claim has been materially restricted.1_ Demurrers must be set
down at a prescribed time.” The court or a judge can order ques-
tions *of law to be decided, before questions of fact,’ and *490]
questions of fact to be tried at different times and by differ-
ent modes of trial.‘ Special orders will therefore be probably made
in all cases. Where, formerly, there were several issues upon the
record, and a finding for the defendant upon one which went to the
merits of the whole action, it was unnecessary for the jury to assess
damages upon the others.” So now if there is any one finding of
the jury which entitles the defendant to judgment it would be un-
necessary to have damages assessed.

Sec. 762. Assessing damages upon several counts.

Where, formerly, there were several causes of action in the same
declaration against the same defendant, and there was a general
verdict for the plaintiff, damages might be assessed severally upon
each count. And this was the safer course; for when damages
were entirely assessed, it was intended for all that for which the
plaintiff complained.’ And therefore, if any one of the alleged
causes of action was insufficient, a venire de novo was awarded.*
And for this purpose, several breaches of the same agreement,’ or of
the same covenant,” were considered as several counts.

Sec. 763. Or upon the same count containing several demands.

On the other hand, if the same count contained two demands or
complaints, for one of which the action lay, and not for the other,
all the damages were referred to the good cause of action, although
‘it was otherwise if they were in separate counts." It was question-

1 Ord. 23, R. 1. B. 285. At one time the rule used to
* Ord. 28, R. 6. be to arrest judgment in toto. Gramvel
3 Ord. 34, R. 2. ». Rhobotham, Cro. Eliz. 865; Stayn-
‘Ord. 36, R. 6. rode v. Locock, Cro. Jac. 115; 5 Rep.
® Gregory ». Duke of Brunswick, 3 108 b; Holt v. Scholefield, 6 T. R.
C. B. 481. 691; Sicklemore 2. Thistleton, 6 M. &
61 Roll. Abr, 570. See Clarke v. 58. 9.
Roe, 4 Ir. C. L. 1. * Leach v. Thomas, whi sup.
710 Rep. 130, a. 10 Sicklemore v. Thistleton, ubi sup.

8 Chadwick v. Trower, 6 Bing. N. 1 Lawrie v. Dyeball, 8 B. & C. 70;
C. 1; Leach v. Thomas, 2 M. & W. Campbell vo. Lewis, 3B. & A. 392; 3
427; Stevenson v Newnham, 13 C. Ex. 82. .

91
722 GeneRAL Verpicr on SevERaL Counts.

able, however, whether the result would be the same, if it appeared
that the jury had, in fact, given damages on a bad cause of action.
An action of trespass was brought against asurveyor for cutting the
plaintiff's trees, which overhung the highway. Defendant pleaded
an order by the justices *under the Highway Act, authoriz-
; ing him to do so. The order was bad as to part of the trees,

and therefore formed no justification. As to part it was good. The
jury found a general verdict for the plaintiff as to the injury to all
the trees, under the direction of the judge, who told them that the
order was entirely bad. A new trial was directed, that the jury
might inquire whether the defendant cut down more trees than the
good part of the order would justify, and to assess damages accord-
ingly... Though not directly in point, the principle of this case
seems to bear strongly upon the question suggested. And so where
a single count in trover charged the conversion of goods, chattels,
and fixtures, to wit, etc., and a general judgment for the plaintiff, a
motion was made to set aside the verdict on the ground that trover
did not lie for fixtures. Parxe, B., said, that if it were clear that
this declaration contained two distinct causes of action, for one of
which trover could not be maintained, then, as general damages had
been assessed upon the whole declaration, there must be either an
arrest of judgment, or venire de novo ; it was unnecessary to deter-
mine which. And he said the case was distinguishable from that
of an action for words, some of which are not actionable; for there
the court would presume that the non-actionable words were not in-
tended to constitute the cause of action, but were used merely as
matter of aggravation or explanation. The court held, however,
that fixtures did not necessarily mean things affixed to the freehold,
and therefore the objection fell to the ground in that instance.’

[#491]

Sec. 764, In actions for slander.
Where the action was for defamation, the following distinction

was taken :—that if an action was brought for speaking words all at
one time, that is, all in one count, and there was a verdict, though
some of the words would not maintain the action, yet if any of the
words would, the damages might be given entirely ; for it was in-
tended that the damages were given for the words which were

‘Jenny 0. Brook, 6 Q. B. 323. * Sheen a. Rickie, 5 M. & W. 175,

181
GENERAL VERDICT ON SEVERAL Counts. 723

actionable, and that the others were inserted only for aggravation.
But if the action was brought for several words spoken at several
times, and the action would not lie for the words spoken at one
time, but would lie for the *words spoken at another, and a [#499]
verdict was found for all the words and entire damages
given, it was not good.’ In an early case the first branch of this
rule was put on the common-sense ground, that if judgment must
be arrested, a man by speaking words not actionable and words
actionable together would secure himself from action, because he
must be found guilty of the whole or none.’ The latter part of the
rule, so far as it conflicted with that laid down in Lawrie v. Dyeball,
cited above, probably proceeded on the ground, that when words
appeared to have been spoken on different occasions, the court
treated them as different counts. If, then, one turned out to be
bad, of course general damages assessed on all would be bad also.

Sec. 765. No procedure.

Under the present practice mistakes made in allowing juries to
assess damages generally instead of severally will not practically be
of so much importance as formerly. New trials will only be granted
where there has been substantial wrong or miscarriage ; and final
judgment may be given as to part of the matters in controversy
though a new trial be directed as to the remainder.’ -

Sec. 766. Separate assessment in detinue.

It may still be useful to remember that in detinue, damages
ought to be assessed as to each chattel separately, that a satisfaction
may be had in value for each parcel in case they be not all delivered.‘
And if the jury do not assess damages, the court cannot exercise its
jurisdiction under 17 & 18 Vict., ch. 125, § 78, to order a delivery
to the plaintiff in specie.° It was held under the old practice that
the defect could not be remedied by a writ of inquiry, but there
must be a venire de novo."

12 Wms. Saund. 171, d; 2 Wms. 4 Ord. 39, R. 3.
Notes to Saund. 498; Bois ». Bois, 1 * Pawly 9, Holly, 2 W. BI. 853.
Lev. 184; Brooke ». Clarke, Cro. ° Chilton », Carrington, 15 C. B.
Eliz. 328; Penson 2. Gooday, ‘Cro. 730; 24 L. J. C. P. 78. Order 49
Car. 327; Griffiths o. Lewis, 8 Q. B. continues this jurisdiction.
841; Alfred v. Farlow, 8 Q. B. 854. 610 Rep.119,b; Herbert 0. Waters,
3 Lloyd v. Morris, Willes, 443. 1 Salk. 205.
724 Assessing Damages acatnst SEVERAL Derenpanrs.

Sec. 767. Prospective damages.

I examined in the early part of this work! the cases in which
damages might be given in respect of matters subsequent to action
[#493] brought. It is only necessary to say here, that where *it was

positively and expressly alleged “in the declaration, that the
plaintiff had sustained damages from the cause subsequent to the
commencement of the action, or previous to the plaintiff's having
any right of action, and the jury gave entire damages, judgment
was arrested ; but where the cause of action was properly laid, and
the other matter either came under a scilicet, or was void, insensible
or impossible, and therefore it could not be intended that the jury
ever had it under their consideration, the plaintiff was entitled to
his judgment.’

Sec. 768. Misjoinder of counts.

‘Where, under the old system of procedure, there was a misjoinder
of several counts, which were in themselves good, and general dam-
ages were given, judgment was arrested. And it was the same where
one count consisted of several causes of action, which ought not to
have been united. In such a case a venire de novo could not be
awarded, because it was only admissible where the jury must find
differently, in order to make the record consistent. But in this case
the jury were bound to assess damages on every part of the declara-
tion.’ But if there was a misjoinder of counts, and verdict for the
plaintiff on the counts properly joined, and for the defendant on the
others, this was no ground for arresting the judgment.‘ And so the
defect was cured, if the jury were directed to find for the defendant
on the count wrongly joined, or if a nolle prosegui were entered
upon that count.’

Sec. 769. aCe the action is against several, damages must be assessed gen-
erally. .

Where, under the old system, an action was brought against sev-
eral, and the plaintiff had a verdict against all, if the action was on
a contract, it necessarily was for the amount of the single liability
which rested upon all. And even where the action was for a tort,
the jury were obliged to assess damages generally against all, and

1 Ante, p. 185. 3 Corner v. Shew, 3 M. & W. 350;
°2 W. Saund. 171; 2 Wms. Notes Kitchenman ». Skeel, 3 Ex. 49.
to Saund. 495. ‘ Kightly v. Birch, 2 M. & S. 538.

® Kitchenman ». Skeel, ubi sup.
Assrssinc Damages acainst SeveraAL Derenpants. 725

that whether they united or severed in the pleas and issues! And
in such a case, the measure of damage was the gross amount of
injury which the plaintiff had received from all, it being said that
“although one of them de facto does more and greater wrong than
the others, *yet all coming to do an unlawful act and of one

he . _ [*494]
party, the act of one is the act of all of the same party being
present.”* A doubt was, however, expressed as to this latter doc-
trine. An action was brought against the sheriff and one of his
officers jointly, and large damages given. The court held that the
damages were not excessive against the sheriff, though they would
be excessive against his officer but for the doctrine above mentioned.
“Tt has been said,” they observed, “that in an action of tort against
several defendants who have taken different parts in the transaction,
the measure of damages ought to be the sum which ought to be
awarded against the most guilty of the defendants. We wish to
afford an opportunity for discussing whether there be such a doc-
trine, and how far it applies to the present cause.”* And it was
quite settled that in no case could the malignant motive of one
party be made a ground of damage against the other party, who was
altogether free from such improper motive. In such case the plain-
tiff was bound to select the party against whom he meant to get
aggravated damages."

Sec. 770. New procedure.

Now that actions may be brought against all defendants against
whom the right to relief is alleged to exist whether jointly, severally,
or in the alternative, and judgment given against such one or more
of them as may be found liable according to their respective liability,
it is possible that juries will be allowed to distinguish between defend-
ants in according damages for a joint unlawful act.’

Sec. 771. Contrary decisions.
It was laid down in some old authorities, that in trespass against
two, if the jury found one guilty at one time, and the other at

' Cocke v. Jennor, Hob. 66; Hey- Esp. 158; Eliot v. Allen, 1 OC. B. 18;
don’s case, 11 Rep. 5, b; Crane v. Clark v. Newsam, 1 Ex. 131.
Hummerstone, Cro. Jac. 118; Onslow 8 Gregory v. Cotterell, 22 L. J. Q. B.
». Orchard, Stra. 422; Lowfield v. 217.

Bancroft, id. 910; Hill ». Goodchild, «Clark ». Newsam, 1 Ex. 131, 140.
5 Burr. 2790. See Wright. Court,.2 C. & P. 282.
211 Rep. 5 b;. Brown v. Allen, 4 5 Ord. 16, R. 3 and 4, See ante, p.
594,
726 Assessine Damages against SeverAL DErenpants.

another, there several damages might be taxed; but if the plaintiff
himself confessed that they committed the trespasses severally, there
the writ should abate; and so there was a difference between finding
by verdict, and confession of the party.! And so where one was
found guilty of one part and one of another;* or one of part and
[495] another of the *whole.* And where entire damages were

found in such a case against all, judgment was reversed."
According to later decisions, this was not considered to be law.
Torts being in their nature several, the jury might find any one
guilty, and acquit the rest; but if they found several guilty, they
could only convict them of that which was charged against them,
viz.: a joint offense. Accordingly where several persons were sued
jointly for assault and false imprisonment, two having taken the
plaintiff into custody, and delivered him over to the third by whom
he was detained, it was ruled that the attention of the jury must
either be confined to what took place at the place of detention, or
there must be a verdict in favor of the third defendant. And for
this reason, because the damages being joint against all, the latter
defendant would be liable to pay for an act, with the commission of
which he had nothing to do.*° And so when the action was against
three, for entering a dwelling-house and seizing goods, and the evi-
dence proved that two of the defendants seized the goods, and one
entered the house, but no joint trespass was established, CrEsswELL,
J.,compelled the plaintiff’s counsel to elect on which trespass he
would go to the jury. As soon as the plaintiff proved a distinct
trespass committed by one of several defendants, and by him alone,
and then tendered evidence of a different trespass, he was liable to
be called on to make his election.’

Sec. 772. New procedure.

But now it is not necessary that every defendant should be inter-
ested as to all the relief prayed for, and a jury would be entitled to
award damages against a defendant for a distinct trespass committed
by him alone in addition to the damages awarded against him and
his co-defendants for a joint trespass.”

111 Rep. 5, b. 5 Aaron v, Alexander, 3 Camp. 35;

° Player v. Warn, Cro. Car, 54, Powell », Hodgetts, 2 C. & P. 432.

* Austen v. Willward, Cro. Eliz. 860; 6 Howard v. Newton, 2 M. & Rob.
Whitwell v. Short, Styl. 5. 509. And see Barnard », Gostling, 1

41d. N. R. 245.

7 Ord. 16, R. 8.
Jupg@MENT By Deravtt. T27

Sec. 773. Where some pay money into court.

Where some plead to the whole action, and others pay money into
court, if the jury find all guilty, and that the sum paid is enough as
to all, they must acquit the party *pleading payment, and _,

. me ‘ [*496]
find against the other parties with nominal damages. But
they cannot find that the sum is enough as to the party paying it,
and further damages against the others. In such a case, if the tort
was actually a joint one, they must find against all for the surplus
left unsatisfied after the payment into court.’ At least this was the
practice until the recent changes, and it should apparently continue,
unless indeed juries, as suggested above, are allowed in cases of joint
torts to give aggravated damages against those of the defendants
who were actuated by peculiar malice.”

Sec. 774. How assessment of damages severally might be remedied.

Where under the old practice damages were assessed severally
instead of jointly, judgment was reversed ;* but the plaintiff might
cure it by taking judgment de melioribus damnis against one, and
entering up a nolle proseqgui against the others, and this whether
they had joined or severed in pleading.“ And this did not operate
as a release, which would inure to the discharge of all.° Or he
might have judgment for the greater damages against all, either
with or without entering a remittitur as to the lesser, for taking the
greater damages operated as a remittitur of the less.’

Sec. 775. Judgment by default against all.

Where judgment by default has gone against all, the plaintiff
should have damages assessed by a single writ of inquiry, if neces-
sary. Where formerly a plaintiff executed several writs of inquiry in
such a case, and several damages were given against each, it was
held that if-he had entered up final judgment upon these interlocu-
tory judgments it would have been erroneous. But upon payment
of costs the plaintiff was allowed to set aside his own proceedings.’
Now, if there were any reason against a single inquiry, a judge

1 Per Parruson, J., Walker. Wool-- _* Cro, Car. 243; Cocke ». Jennor,

cott, 8 C. & P. 352. Hob, 66.
2 Ante, p. 725. 6 Johns v. Dodsworth, Cro. Car. 192;
* Onslow v. Orchard, Stra. 422; Hill Sabin v. Long, 1 Wils. 30.

®. Goodchild, 5 Burr. 2790. 7 Mitchell v. Milbank, 6 T. R, 199,

4 Walsh v. Bishop, Cro. Car. 248;
Rodney ». Strode, Carth. 19.
728 JUDGMENT BY D4EFAULT.

would provably make a special order respecting the way in which the
damages should be ascertained under the powers given by the rules.’

Sec. 776. Judgment by default against one in contract.
[#497] *Under the old practice, before the recent judicature acts
and new orders and rules, the effect of a judgment by de
fault, suffered by one only of several defendants, differed according
as -the action was in contract or fora tort. In the former case, if
the writ had been specially indorsed, the plaintiff issued execution
against the defendant who had not appeared, in which case he was
taken to have abandoned his action against the other defendants.
Or he declared against those who had appeared, suggesting the judg-
ment by default.*, The latter course was a very dangerous one,
unless success against the defendants who had appeared was certain,
since if he failed against them in consequence of a defense which
went to the ground of the action, he could not have judgment
against the party who had made default;°* and he could not remedy
it by entering a nolle prosequi against those who appeared.* Where,
however, the plea of those who appeared was a matter of mere per-
sonal discharge, as bankruptcy, insolvency, ne wngues ewecutor,;* or
even where such a plea was joined with one which went to the base
of the action,° the plaintiff might enter a nolle prosequi against the
party pleading, and still retain his remedy against the other. But
infancy was not such a plea'of merely personal discharge as would
allow of a nolle prosegut being entered, since it proved that there
never was a binding contract made by all the parties, not that it had
ceased to bind one of them.” The proper course in such a case was
to discontinue and sue the adult alone.*

Sec. 777. In tort.

Where under the old practice the action against several was in
tort, and some let judgment go by default, and others pleaded, a
special venire was awarded, tam ad triandum quam ad inquirendum,
and the jury who tried the issue assessed damages against both.’ And

1 Ord, 18, R. 6; Ord. 29, R. 4. ‘Chandler v. Parkes, 3 Esp. 76;
°C. L. P. Act, 1852, § 33. Jaffray v. Frebain, 5 Esp. 47.
5 Porter v. Harris, 1 Lev. 63; Boulter 8 Burgess 2. Merrill, 4 Taunt. 468.
v. Ford, 1 Sid. 76. *11 Rep. 6a. And this was also
41 W. Saund. 207,a; 1 Wms. Notes the proper course when the action was
to Saund. 215. in contract for unliquidated damages;
5 Noke v. Ingham, 1 Wils. 89. Thompson v. Shanley, 4 Ir. C. L. R.

° Moravia », Hunter, 2M. & 8.444. 617; 2 Ch. Arch. Pr. 980, 9th ed.
JupamEnt BY DEFAULT. 729

if upon the trial those who had pleaded were acquitted, damages
might still be *assessed against those who had let .judgment [#498]
go by default.! But it was otherwise if the plea of those who
appeared not only operated as a defense to themselves, but showed
that the plaintiff had no cause of action against either, as that the
goods taken were a gift from the plaintiff to the defendant, or a law-
ful distress for rent, or that the plaintiff had released one of the
joint-trespassers ;* apparently, however, the plaintiff might, at his
option, take judgment against those who made default and enter a
nolle prosequi against the others.®

Sec. 778. Plaintiff could not be nonsuited against those who appeared.

When there were several defendants, and judgment had gone by
default as to one or more, and the others pleaded, the plaintiff could
not be nonsuited as to those who appeared, whether the action was
on a contract‘ or for a tort.’

Now, these distinctions have been done away with. If the writ
is specially indorsed for a debt or liquidated demand in money, and
one or more defendants do not appear, or do not deliver a defense or
demurrer, the plaintiff may enter final judgment against such as
have not appeared, and may issue execution upon such judgment
without prejudice to his right to proceed with his action against such
as have appeared.° And when the action is for detention of goods
and pecuniary damage, or either of them, if one of several defend-
ants make default, the plaintiff may enter an interlocutory judgment
against him, and proceed with the action against the others; and
damages against the defendant making default will be assessed at
the same time with the trial of the action or issues therein against
the other defendants, unless the court or a judge otherwise direct.”
Seeing, also, that all persons may be made defendants against whom.
the right to any relief is alleged to exist jointly, severally, or in the
alternative, and judgment may be given against one or more of them

! Jones v. Harris, Stra. 1108; Cressy the contrary was held subsequently in
». Webb, Stra. 1222. Murphy v. Donlan, 5 B. & C. 178.

° Briggs ». Greinfeild, Stra. 610; 5 Harris v. Butterley, 2 Cowp. 483.
2 Lord Raym. 13872, S. C.; Marler». See per Lord Mansrigexp, 1 Burr. 359.
Ayliffe; Cro. Jac. 184; 1 Inst. 125, b. 6 Ord. 13, R. 4; Ord. 29, R. 8; see

3 Walsh v. Bishop, Cro. Car. 239, Jenkins». Davies, 1 Ch. D. 696, where
248, the defendants were husband and

4 Weller ». Goyton, 1 Burr, 358; wife. :
Hannay v. Smith, 3 T. R. 662. But 7 Ord. 29, R. 5.
92
730 Dovste and Tresire Damaczs.
according *to their respective liabilities,” the nice questions ¢ of

nonsuit which used to arise will cease to do so.

[*499]

Sec. 779, Former recovery in tort.

Although in tort the plaintiff may proceed against any of the
wrong-doers separately, a recovery against one will be a bar to an
action against any other whom he might have joined in the same
action; for by the judgment the damages are converted into cer-
tainty.” But the mere pendency of an action against one is no
answer to an action against another,’ whether in contract or on a
tort.

Sec. 780. Verdict for larger damages than are claimed.

We have seen before‘ that no greater damages can be given
than are alleged in the declaration. Under the old practice, if
the jury gave more it was error, and the judgment was reversed.°
After judgment the party could not himself amend, but the court
would, in the exercise of their authority to amend, allow him to
become their instrument for that purpose; and this they would do,
even ina subsequent term, and after error brought on that very ac-
count, and joinder therein.*

Sec. 781. Double and treble damages.

There are various statutes which give double and treble damages
against a person violating their provisions. For instance, treble
damages are given for a forcible entry into the lands of the plain-
tiff,’ or for extortions by sheriffs, coroners, and officers of that na-
ture,* or for an improper impounding of a distress,’ or where a verdict
is found for the defendant in replevin, where a distress has been
taken for poor-rates.° And so double damages are given for dis-

1 Ord. 16, R. 3. Bulstr. 49; Cheveley ». Morris, 2 W.

? Morton’ scase, Cro, Eliz. 30; Brown
». Wootton, Cro. Jac. 74; Cocke ».
Jennor, Hob.66 ; Lechmere 2. Fletcher,
10. &M. 634; King ». Hoare, 13 M.
& W. 504; Brinsmead ». Harrison, L.
R., 6 C. P, 584; 40 L. J.C. P. 281;
affirmed, 41 id. 190. See ex parte Drake,
5 Ch. D. 866.

2 Henry v. Goldney, 15 M. & W.
494; overruling Boyce v, Douglass, 1
Camp. 60.

4 Ante, p. 198.

® 1 Roll. Abr, 578; Persival 0. Spen-
cer, Yelv. 45; Hoblins ». Kimble, 1

Bl. 13800. Proceedings in error are
now abolished. Ord. 58, R. 1.

6 Pickwood v. Wright, 1 H. Bl. 643;
Usher v. Dansey, 4 M. & 8. 94. For
the principle of these amendments, see
post, ch. 19.

78 Hen. VI, ch. 9, §6; Dyer, 214, a,
pl. 45.

813 Hen. VI, ch. 10, § 11; 29 Eliz.
ch. 4; Brunsden’s (Bumpstead’s) case,
Cro. Car. 438, 448.

°1&2 Ph. & M. ch. 12, § 1.

10483 Eliz. ch. 2, § 19; "Newman ».
Bernard, 10 Bing. D4; ante, p. 467,
Wuen a Wrrr or Inquiry may Assess Damacus, eto. 731

training the plaintiff's *goods, no rent being due.! And
; : [*500]

treble damages for pound breach or rescuing a distress.” In

all these cases the practice is to take the sum returned by the jury,

and without any further communication with them, to double or

treble the amount.’

Sec. 782. When a writ of inquiry may assess damages in place of the principal
jury.

Having now gone through the practice according to which a jury
ought to assess damages, it remains to notice the manner in which
any omission by them so to do may be supplied.

The law upon this point was laid down in an old case as follows:
“Where the matter omitted to be inquired by the principal jury is
such as goes tothe very point of the issue, and upon which, if found
by the jury, an attaint ,will lie against them by the party, if they
have given a false verdict, there such matter cannot be supplied by

_a writ of inquiry, because thereby the plaintiff may lose his action
of attaint,* which will not lie upon an inquest of office. But where
the matters omitted to be inquired by the jury do not go to the point
in issue, or necessary consequence thereof, but are things merely

, collateral, as damages in replevin for poor-rates, and the four usual
inquiries on a guare impedit, such may be inquired of by a subse-
quent writ of inquiry, because if the same had been inquired into
by the principal jury, it would have been, as to those particulars,
no more than an inquest of office, upon which an attaint does not
tie???

Hence, under the practice before the judicature acts, no writ of
inquiry could issue where the jury had omitted to assess damages in
detinue or trespass;° or libel ;’ or on a bond conditioned for the per-
formance of covenants within statute 8 and 9 W. IIT, ch. 11;° or
in assumpsit, though the only issue was on a plea of abatement.’

12 W.& M. sess. I, ch. 5, §5; Mas- “Now abolished by 6 Geo. IV, ch.
ters o. Farris, 1 C. B. 715. 50, § 60.

22 W. & M. sess. I, ch.5, §4; Anon., 5 Herbert v. Waters, Carth. 362.
Lord Raym. 342; Lawson ». Storie, * 10 Rep. 119.

1 Salk. 205. Clement v. Lewis, 3 ‘B. & B. 297.
® Attorney-General »v. Hatton, 18 8 Hardy v. Bern, 5 T. R. 540, 636.
Pri. 476; WClell. 214; Buckle ». -EHichorn » Le Maitre, 2 Wils.

Bewes, 4 B. & C. 154; Bro. Dam. pl. 367.
70. ;
732 Cowrzssion; Dremurrer to Evmence; Repievin.

But in all these a venire *de novo was awarded. Nor could
an omission to assess damages on the traverse to a return to
a mandamus be supplied.1_ Where, however, in such a case as that
last mentioned, the jury had omitted to give nominal damages, but
the omission to mention them to the jury, and to enter them as part
of the associate’s minutes, was accidental, the judge having intended
so to direct them, it was held that the judge was justified in ordering
1s. damages to be entered on the postea.*

[*501]

Sec. 783. Confession. Demurrer to evidence. Replevin.

On the other hand, where the plaintiff had had a verdict, and
damages assessed upon an immaterial issue, upon which judgment
would be arrested, or even where judgment had gone for the de-
fendant, still, if enough appeared upon the pleadings to entitle the
plaintiff to judgment by confession, a writ ,of inquiry would issue
to assess new damages.” And the plaintiff, even without leave of
the court, might execute a writ of inquiry to assess damages, where
the circumstances of the case entitled him to enter up judgment
non obstante veredicto.* So on a demurrer to the evidence, the jury
might inquire conditionally of the damages, or a writ of inquiry
might issue ;° or in an action of dower unde nihil habet.’ In re-,
plevin, where the plaintiff was nonsuited or had verdict against him,
the defendant could not have judgment under 17 Car. II, ch. 7, for
the arrear of rent, or the value of the distress, unless the jury
impanelled to try the issue inquired into the amount.” But in
every other case of replevin, the omission of the jury to find dam-
ages for the defendant, whether under statutes 7H. VIII, ch. 4, and
21 H. VIII, ch. 10, or under 48 Eliz., ch. 2, § 19, might be remedied
by a writ of inquiry.” Of course where an act, authorizing a dis-
tress for local purposes, gave the avowant no damages in case of
success, no inquiry was required, or could take place.”

1Kynaston v. Mayor of Shrewsbury, 6 Say. Dam, 126.

2 Stra, 1051. ” See ante, p. 529.

? Reg. v. Fall, 1 Q. B. 636. * Gilb. Distress, 193; Harcourt 2.

’Lacy v. Reynolds, Cro. Eliz. 214; Weeks, 5 Mod. 77; Herbert v. Waters,
Jonesv. Bodinner. Carth. 370; Broome Oarth. 862; Dewell »v. Marshall, 3
v. Rice, 2 Stra. 873. Wils. 442; Valentine v. Fawcett, 2

‘Shephard v. Halls, 2 Dowl. 453. Stra. 1021; and see Wright v. Lewis,

’Darrose ». Newbott, Cro. Car. 43; 9 Dowl. 183.
Sir James Herbert’s case, Skinn. 595. ® Gotobed v, Wool, 6 M. & S. 128.
Omission to AsorRTAIN DAmacEs. 733

*Now a new trial could be directed under Ord. 39, R. 4
ce . . > [*502]
for the purpose of ascertaining the damages without inter
fering with the finding or decision upon any other question. Or
the court could under Ord. 36, R. 6, order the amount of damages

to be ascertained as a question of fact separately from the other
questions of fact.
734 AMENDING THE PosTEA.

[*503] *CHAPTER XLI.

POWERS OF THE COURT OR JUDGE IN REGARD TO DAMAGES.

Szc. 784. Right to begin.
785. Directing the jury.
786. Amendment.
787. New procedure. Application to the judge who tried the cause.
His decision final.
788. From what material amendment might be made.
789. Amendment must be in furtherance of the intention of the jury.
790. At what time the amendment might be made.
791. Power to increase or abridge the damages.
792. Damages on writ of inquiry.
793. Where damages depend on question of law.

Sec. 784. Right to begin.

The last subject we have to consider is the part which may be
taken by the court or a judge in respect to damages; their duties
and their powers.

A matter of very considerable importance to the plaintiff in many
cases is the right to begin. Many of the principles upon this point
are quite unconnected with the topics discussed in this treatise.
There is one, however, directly relevant, viz., the rule, that no mat-
ter on whom the proof of the issue may be thrown by the pleadings,
the plaintiff must begin whenever he proceeds for unascertained
damages. When, however, the affirmative issue rests in other
respects upon the defendant, if the plaintiff's counsel will not
undertake to offer proof of substantial:damages, the right to com-
mence then passes to the defendant.” But even where the judge has
ruled wrongly upon this point, a new trial will not be granted, unless
manifest injury has been done to the party against whom he de-
cided.

' Mercer v. Whall, 5 Q. B. 447; Edge 3 Edwards ». Matthews, 4 D. & L.

‘o. Hillary, 3G. & K. 48. 721; Brandford o. Freeman, 5 Ex. 734.
? Chapman v. Rawson, 8Q. B, 673. And see Ord. 39, R. 3.

"
AMENDING THE PostEa. 935

Sec. 785. Directing the jury.

Another imperative duty resting upon the judge at Nisi Prius is
to direct the jury as to any rule of law by which they ought to be
governed in their assessment of damages. Any omission, mistake,
or indefiniteness in this respect,. in *consequence of which
the jury have gone astray, will be set right by a new trial, if
at least substantial wrong or miscarriage has been occasioned,” and
this whether the point has been taken at the time of trial by counsel
or not. #

[*504]

Sec. 786. Amendment.

It would be useless now to discuss at any length the rules which
used to prevail respecting an amendment of the postea ; in cases, for
instance, where the officer of the court had entered nominal dam-
ages by mistake, where substantial damages had been given,‘ or
where the jury had not assessed the value of the articles separately
in detinue,® or where general damages had been assessed upon a
declaration in which some counts were bad." .

Sec. 787. New procedure. Application to the judge who tried the case. His
decision final.

The successful party no longer signs judgment on the postea, but
the judge directs the findings of fact, and the directions which he
may give as to judgment to be entered in the associate’s book,’ and
the associate’s certificate is the authority to the proper officer to
enter judgment.* If the entry in the associate’s book is not accord-
ing to the judge’s directions, the judge who tried the cause should

be applied to to direct a proper

‘Blake v. Midland Ry. Co, 18 Q.
B. 98; Hadley ». Baxendale, 9 Ex.
341.

? Ord. 39, R. 3.

3 Knight v. Egerton, 7 Ex. 407.

4 Newcombe v. Freen, 2 Stra. 1197.

° Sandford v. Alcock, 10 M. & W.
689.

6 Eddowes». Hopkins, 1 Dougl. 377,
The rule upon this point was laid
down as follows: “If there is only
evidence at the trial upon such of the
counts as were good and consistent, a
general verdict might be altered from
the notes of the judge, and entered
only on those counts. But if there is
any evidence which applies to the »

entry to be made. Where the

other bad or inconsistent counts (as,
for instance, in an action for words,
where some actionable words are laid,
and some not actionable, and evidence
given of both sets of words, and a
general verdict), there the postea
cannot be amended, because it would
be impossible for the judge to say on
which of the counts the jury had
found the damages, or how they had
apportioned them. In such a case
the only remedy is by awarding a
venire de novo. Per Buiunr, J., ubé
sup.
7 Ord. 36, R. 28.
8 Ord. 36, R. 24.
436 AmeEnpDIne THE PosTEA.

judge has caused the findings to be wrongly entered, or the judg-
ment to be wrongly entered having regard to the findings, any
party without any leave reserved may have recourse to the court
of appeal.! That court has full power to give any such judgment
[#505] as ought to have been given by the court below, and *under
special circumstances to hear fresh evidence on questions of
fact. It may be mentioned that the original practice with regard
to amending the postea was to apply. to the court in which the
record was, to make the required amendment.’ The latter practice
established that the proper course was to apply to the judge,who
tried the cause, in order that he might amend the entry by making
it conformable with what took place at the trial.‘ And his deter-
mination could not be reviewed, because the court had no power to
compel a production of his notes.° For the same reason the court
could not amend a postea by the notes of an arbitrator. The only
remedy in a case where such an amendment had been wrongly
made was to induce the judge who tried the cause to rescind his
own order.” The application might, however, be made to the judge
in court, that he might have the assistance of the other judges ;°
and where the judge who tried .the cause had left the bench, the
amendment might be made by the court from his notes.’

Sec. 788. From what materials amendment might be made.

The postea might not only be amended by the judge’s notes, but
by those of the associate or clerk of assize,” or by those of the under-
sheriff who tried the cause; but in the latter case the application
was made to the court."

It was necessary that an amendment of the postea should be made
from some document written at the time. It could not be made

1 Ord. 40, R. 4.

* Ord. 58, R. 5.

3 Eliot v. Skypp, Cro. Car. 338;
Hankey v. Smith, Barnes, 449; Mayo
v. Archer, 1 Stra. 513; Newcombe 2.
Green, 2 Stra. 1197; Spencer v. Goter,
ubi sup.; Eddowes v. Hopkins, id. ;
Petrie v. Hannay, 3 T. R. 659.

4 Newton v. Harland, 1 M. & Gr.
958; Earnest v. Brown, 4 Bing. N. C.
162; Scougull v. Campbell, 1 Chitt.
283. ‘

5 Sandford », Alcock, 10 M. & W.
689; Graham v. Bowham, 1 ‘Chitt.

284, n.; Blair v. Street, 2 Ad. & Ell.
829; Newton v. Harland, ubi sup. ;
Daintry v. Brocklehurst, 3 Ex. 691;
Contra, Empson ». Griffin, 11 A. & E.
186.

® Scougull ». Campbell, ubi sup.

" Kilner v. Bailey, 5 M. & W. 385.

®* Harrison 2. King, 1 B. & A. 163.

® Richardson v. Mellish, 8 Bing. 384.

0 R. v. Keat. 1 Salk. 47; Parsons ».
Gill, id. 51; Pedley ». Frampton, 2
Chitt. 155; Sandford 2. Porter, id. 351.

1 Wallis », Goddard, 2 M. & Gr. 912.
AMENDING THE PostEa. "37

from the judge’s recollection.! The judge’s *notes, taken at
the time, were conclusive, and no affidavits could be received
to explain or contradict them.”

[*506]

Sec. 789. Amendment must be in furtherance of the intention of the jury.

Although amendments of this nature were allowed in order to
carry out the intention of the jury, by making the verdict what they
meant, and had virtually found,* the verdict could not be altered
unless it clearly appeared that the alteration would be agreeable to
the intention of the jury.*| Therefore, where in an action on 2 and 38
Edw. VI, ch. 13, which gives treble value for not setting out tithes,
the jury found a verdict only for the single value, it was held that
the postea could not be amended by entering the verdict for the
treble value.” But where the plaintiff was entitled to treble dama-
ges, and the jury found a sum as and for single damages specifically,
the court allowed the amount to be trebled;° but there the court
only gave the finding of the jury its legal effect.’ This intention
can only be ascertained by what has passed in open court. If the
jury deliver one verdict, affidavits from them cannot be received to
show that they intended to deliver another.’ This rule will doubt-
less continue to prevail.

Sec. 790. At what time the amendment might be made.

It may be remarked finally with respect to the time at which
amendments of the postea could be made, that it was held at one
time that the postea could not be amended after judgthent,’ at all
events, unless the amendment was made in the same term in which
the judgment was entered up.” This was apparently on the idea
that such amendments were made by the common law authority of
the judges, which could only be exercised in the same term, while
the record was in'the breast of the judges, and not in the roll" It

1R. 0. Virrier, 12 Ad. & Ell. 337. 72M. & W. 199.

2 Everett v. Youells, 4 B.& Ad. 681; 8 Jackson v, Williamson, 2 T. R.
R. vo. Grant, 5 id. 1081. 281; Bentley v. Fleming, 1 C. B. 479;

® Wallis v. Goddard, udi sup. Raphael v. Bank of England, 17 C. B.

4Spencer ». Goter, 1 H. Bl 78; 161.
Reece v. Lee, 7 Moo. 269; Ernest 2. ® Mornington v. Try, Cro. Eliz. 111;
Brown, 4 Bing. N. C. 167; Bull. N. Sandiford v. Bean, 2 Bac. Abr. 160;

P. 320. - Grant v. Astle, 2 Doug. 730.
5 Sandford ». Clarke, 2 Chitt. 351. 1 Ray a Lister, Andr. 351; Cheveley
* Baldwyn and Girrie’s Case, Godb. v. Morris, 2 W. Bl. 1300.

245, 18 Rep. 157, a.

93
438 -  Iwormastne or Asripcina Damaces.

was afterward settled that such amendments are made, not at com-
mon law, but by virtue of the statutes of misprision, 14 Edw. III,
[#507] *Stat. 1, ch. 6; 9 Henry V, Stat. 1, ch.4; 4 Henry Vi ch.

3 8; 8 Henry VI, chs. 12 and 15, which enacted that the king’s
judges of the courts in which any record for the time should be,
should have power to examine such record, and to amend all that
which to them in their discretion seemed to be misprision of the
clerks in such record, so that by such misprision of the clerk no
judgment should be reversed or annulled.’ Errors amendable under
these statutes were held amendable as well after as before judg-
ment ;” even after the lapse of several terms, and after error brought
and joinder in error, and argument.’

In Doe v. Perkins and Bowers v. Nixon,‘ it was said that the
amendment might be made at any time. Where, however, eight
years had elapsed after the judgment, and after the plaintiffs atten-
tion had been pointed to the mistake by a writ of error, and no ap-
plication to amend was made till after reversal of the judgment on
error, leave to amend was refused. Lord Exrensoroven said,
“The moment the writ of error was brought, it was notice to a man
who did not sleep the sleep of death over his rights.” The fact of
notice would probably be the test, for in another case, where a
similar application was made nearly a year after trial, when the
question arose in the third term after judgment, on the taxation of
costs, it was held that the application was in time. Tuxvpat, C. J.,
remarked that “ probably he did not feel hurt by the form of the

1 See per Parrsson, J., in Bowers
». Nixon, 12 Q. B. 546, 557: “It is

said that a judgment cannot be
amended after the term in which it

Burr 2730; Petrie v, Hannay, 3 T. R.
659; Doe v. Perkins, id. 749; Hardy 2.
Cathcart, 1 Marsh. 180; Usher 2.
Dansey, 4M. & 8. 94; Richardson o.

has been entered up, unless the error
to be amended is a mere misprision,
and that the error in this case is no
misprision. -In one sense it certainly
is not misprision, for it agrees with
the postea, and the only mistake was
in the postea itself. But as soon as
the postea had been amended by the
proper authority, there was a variance
between the postea and tie judgment.
Now this variance was in the nature
of a misprision, and it was properly
amended by making the judgment
conformable to the postea.”

28 Rep. 157, b.

° 8 Rep. 162, a.; Short ». Coffin, 5

Mellish, 3 Bing. 334; Wilkinson 0.
Sharland, 11 Ex, 33, The court of
error used to amend the judgment re-
turned to it by the amended record in
the court below; 8 Rep. 162, a.;
Mellish ». Richardson, 7 B. & C. 819;
Mellish v. Richardson, 9 Bing. 125; 1
Cl. & Fin. 224; Tetley ». Wanless, L.
R., 2 Ex. 279; 86 L. J. Ex. 155; and
would postpone delivering their own
judgment, to allow time for an amend-
ment, Bowers v. Nixon, 12 Q. B.
546; Gregory v, Cotterell, "95 L. J. Q.
B. 33, 37.

4 Ubi sup.

5 Harrison 2, King, 1 B. & A. 161.
739

Inorzastne or Axsripgina DamaceEs.

verdict, *till the pressure arose upon the question of costs.” ! [#508]
The statutes of misprision are still in force.

Sec. 791. Power to increase or abridge the damages.

The power of the court to alter the assessment of damages by
their own independent authority has undergone a complete change.
It was always admitted that in cases where the amount of damages
was uncertain, their assessment was a matter so peculiarly within
the province of the jury that the court could not alter it.” On the
other hand it is laid down in old books, that wherever the demand
of the plaintiff is certain, as in an action of debt, the verdict may be
increased or abridged by the court.* And so in cases of mayhem,
there is a long current of decisions to show that the court have the
power of increasing the damages given by the jury, either upon an
inspection of the wound by the court, or upon a certificate from the
judge who tried the cause.* But I am not aware of any instance in
which such a jurisdiction has been exercised in modern times. The
court will not even increase the damages upon an aftidavit by all the
jury that they thought the effect of their verdict would be to give
the plaintiff a larger sum than it did.° Nor where the cause was
undefended, and the plaintiff’s counsel took a verdict for principal
alone without interest. And where the damages found by the jury
have been assessed on a principle assented to by the counsel on both
sides, the court will not interfere to alter the amount of the verdict,
on affidavits that counsel were mistaken in that which they assumed
as the basis of their calculation.’ And so in ar action of debt on 2
& 3 Edw. VI, ch. 18, which gives treble value for not setting out
tithes, the jury found a verdict for the single value only, and it was

‘Ernest 0. Brown, 4 Bing. N. C.
166. Apparently it was doubtful
whether the postea could be amended
after judgment had been reversed on
error. See the 2d ed. of this work,
p. 451, and cases cited there.

2 Delves v. Wyer, 1 Brownl. 204;
Jenk. 2d Cent. 68, pl. 29; Bonham 2.
Sturton, Dy. 105, a.; Hawkins 9.
Sciet, Palm. 314.

311 H. IV, 10; 10 H. VI, 25; 32 H.
VI, 1.

439, Edw. III, 20; Tripcony’s Case,

Dyer, 105, a.; Mallet »o. Ferrers, 1
Leon. 139; Hooper ». Pope, Latch.
223; Austin ». Hilliers, Hardr. 408;
More’s Case, Freeman, 173; Cook v.
Beal, 1 Ld. Raym. 176; Brown v. Sey-
mour, 1 Wils. 5; Hoare v. Crozier, 2
Tidd’s Pra. 9th ed. 896; Small piecev.
Bockingham, Bull. N. P. 21.

5 Jackson v. Williamson, 2 T. R.
281.

6 Baker v.. Brown, 2 M. & W. 199.

7 Hilton v, Fowler, 5 Dowl. 312.
740 Inorgasine on ABripeinc DamaGes.

[#509] held *that the postea could not be amended by entering the
verdict for the treble value. The court said, “Had this been
an action for penalties, and the jury, upon the plea of not guilty,
had found that the defendant was guilty of the premises, and that
the single value of the tithes was so much, then the plaintiff might
come to the court, to have the judgment entered up for treble value
as given by the statute. But if the jury, as in this case, find that
the defendant owes the plaintiff so much, we are bound to conclude
from the postea, that they have taken into consideration all the
damages that the plaintiff was entitled to recover. There is nothing
in this case to show that the jury have only found the single value,
and we cannot allow the matter to be explained by affidavit.”! On
the other hand, where the plaintiff was entitled to treble damages,
and the jury found a sum as and for single damages specifically, the
court allowed the amount to be trebled.’ But there the court only
gave the finding of the jury its legal effect.2 Where, however, the
plaintiff had evidently sustained some damage, but the jury, being
unable to ascertain the amount, found a verdict for the defendant,
the court permitted the plaintiff to enter a verdict for nominal
‘damages.*
Nor will the court in any case now reduce the damages without
the consent of the plaintiff, and if he refuse, they can do nothing
but order a new trial.°

Sec. 792. Damages on writ of inquiry.

It is also laid down in many old cases, that damages upon a writ
of inquiry may always be increased or reduced at the pleasure of the
court,° because the court themselves, if they had so pleased, might
upon an interlocutory judgment have assessed the damages, and the
inquisition is only a matter of course, taken to satisfy the conscience
of the court.” In practice, however, the court never do so now, but
award a new writ of inquiry in all cases in which they would award
a new trial.*

1 Sandford ». Clarke, 2 Chitt. 851. 614 H. IV, 9; 3 H. VI, 29;19 H.

* Baldwyn and Girrie’s Case, Godb. VI, 10, 28; Cook v. Beal, 1 Ld.
245, Raym. 176.

32M. & W. 199. TYelv. 152; 2 Wils. 374; Bruce 2.

‘ Feize 1. Thompson, 1 Taunt. 121. Rawlins, 3 Wils. 62.
° Leeson v, Smith, 4 Nev. & M. 304; 8 Chitt. Prac., 9th ed., 939, 1488;
Moore v. Tuckwell, 1 C. B. 607. 12th ed., 1404, 1538.
Wuere Damaces Deprrenp on Questions or Law. 741

Sec. 793. Where damages depend on question of law.

*Where the amount of damages depends upon a question
of law, the convenient course, with a view to save the expen-
ses of a new trial, is to obtain the opinion of the jury upon the
amount of damages proper to be given in either alternative, or to
settle such amount by consent. A verdict being then entered ac-
cording to one view of the case, leave was, under the old practice,
given either to the plaintiff to move to have it increased, or to the
defendant to have it reduced.! Now the judge would reserve the
case for further consideration;* or, if he gave judgment erron-
eously, the court of appeal could set the matter right without a new
trial.

In one case where a rule nisz to reduce damages had been
granted, the court refused to allow execution to issue for the part
admitted, unless the plaintiff would resign the rest. Vavauay, B.,
said, “That the object was to have execution without any judgment
to warrant it.”* But it seems that where part is admitted to be
due, the court will make it a condition of granting the rule nisi to
reduce, that the plaintiff be allowed to issue execution for and levy
’ that part.’

[*510]

1 Chitt. Prac. 460, 12th ed. 3 Hellings v. Young, 3 Sco. 770.
2 Ord. 36, R. 22 a. * Davey v. Phelps, 2 M. & Gr. 300;
Bate v. Pane, 18 Jur. 609.
742 New TRIAu.

CHAPTER XLII.

NEW TRIAL.

So. 794. New trial granted where there has been error in matter of law.

795. New trial will not be granted, where damages are unliquidated
on the ground of their being too small, unless there has been
misconduct of the jury.

796. New trial will be granted where there is a measure of damages.

797. Contingent assessment.

798. New trial on the ground of damages being excessive.

799. Cases in which it has been refused. Trespass.

800. Assault.

801. False imprisonment.

802. Malicious prosecution.

803. Seduction. Crim. con.

804. Breach of promise of marriage.

805. Trover.

806. Mistake in assessment.

807. Cases in which a new trial was allowed.

808. New trial where verdict is under 202.

Sec. 794, New trial granted where there has been error in matter of law.

It appears then that the question of practical importance with
regard to the power of the court over the amount of damages is as
to the cases in which a new trial will be granted.

Subject to the qualification which has recently been introduced,
that a new trial will not be granted on the ground of misdirection,
or improper admission or rejection of evidence, unless some sub-
stantial wrong or miscarriage has been occasioned,! a new trial will
be allowed where the damages were affected in amount by improper
evidence being admitted, or the jury being allowed to take into con-
sideration a ground of claim, or mitigation, which could not be sup-
ported in law ;* or where the jury gave greater damages than are

laid in the declaration ;* or where a case of surprise is *made

*511 : 3 ‘ was
petnl out ;* or where the judge has omitted to direct the jury as to
1 Ord. 39, R, 3. Jenney v. Brook, 6 Q. B. 328; Lock
2 Woodford v. Hades, 1 Stra. 425; . Ashton, 12 Q. B. 871.
Tutton v. Andrews, Barnes, 448; 5 Seale ». Hunter, Lofft. 28.
“Hall o. Stone, 1 Stra. 515.
New TriAt. . 743

the ‘proper measure of damages; or where there has been positive
misdirection on his part, or misbehavior on the part of any other
person.” Where, however, on the execution of a writ of inquiry,
the jury asked what amount of damages would carry costs, and the
undersheriff told them any sum would do, upon which they returned
a verdict of ¢d., it was held to be no ground for a new trial, as it
did not amount to a misdirection, not being wrong information on a
matter which was directly in issue, or which was substantially con-
nected with the finding on the issue.*

Sec. 795. New trial will not be granted, where damages are unliquidated on

the ground of their being too small, unless there has been misconduct of the

jury.

Finally, a new trial will sometimes be granted, on the ground that
the damages are too small, or excessive.

It has been frequently decided that where the action is for un-
liquidated damages, the court will not grant a new trial on account
of their being too low,’ unless there has been some mistake in a

‘Knight ». Egerton, 7 Ex. 407;
Hadley v. Baxendale, 9 Ex. 341; 23
L. J. Ex. 179.

2 Markham »v. Middleton, 2 Stra.
1259.

3 Grater 2. Collard, 6 Dowl. 503.
See Kilmore ». Abdoolah, 27 L. J. Ex.
307.

4 Marsham v. Buller, 2 Roll. Rep.
21; Hayward v. Newton, 2 Stra. 940;
Barker v. Dixie, id. 1051; Lord Gower
». Heath, Barnes, 445; Burges ».
Nightingale, Barnes, 230; Russel v.
Ball, Barnes, 455; Anon.,2 Leon. 214;
Manton ». Bales, 1 C. B. 444. In
actions for tort, the smallness of dama-
ges is not generally a ground for a new
trial. Jackson ». Boast, 2 Penn. St.
49; Colyer v. Huff, 3 Bibb (Ky.), 34;
Shoemaker »v. Livezeley, 2 Brown
(Penn.), 286. Although the court
may set the verdict aside upon this
ground, when the evidence is such as
to show that the jury could not have
properly considered the evidence and
rendered such a verdict. Thus where
in an action for a cruel and unprovoked
assault the jury only returned a ver-
dict for $1, it was set aside. Bacot
». Keith, 2 Bay (S. C.), 466. Soin
an action for an injury sustained from
the wrongful erection of a dam and

the finding involved a permanent right
and the evidence was conflicting, and
the jury only returned a small amount”
for the plaintiff, the verdict was set
aside. Ryerson v. Morris, etc., Bkg.
Co., 28N. J. L. 97.

In asuit for damages for physical
injuries, it appeared that the plaintiff
had been so injured as to remain in-
sensible for the whole day, and for
ten or twelve days he was unable to
use his feet, and hardly knew he had
any, and was laid up for five months.
The jury found that the injury occurred
through negligence of the defendants,
without fault of the plaintiff, and
assessed damages at six cents. It was
held, that the damages were inaequate,
and a new trial must be granted.
Robbins ». Hudson River R. R. Co.,
7 Bosw. (N. Y.) 1.

Where in an action against a lessee
for injuring the premises by cutting
down a grove of live oaks which sur-
rounded the buildings, and evidence
was furnished not only of a serious in-
jury, but of the actual extent of the
injury, and the jury found only nomi-
nal damages, the verdict was set aside.
English . Cluerry, 3 Hill (S. C.), 279.
So, where the action is upon a note or
demand, and there is no dispute as to
44 . New Trt.

point of law on the part of the judge who presided, or in the calcu-
lation of figures by the jury.1. The alleged reason is, that new trials
came only in the room of attaints, as being an easier and more
expeditious remedy, and no attaint would lie for giving too small
damages.’ Accordingly a new trial has been refused, where in an
action of trespass, for bringing the plaintiff before a magistrate on
an unfounded charge of felony, only 4¢. damages were given,
though a question of character was involved.’ So, where the jury
only gave 5J. in an action for maliciously suing out a commission of
bankruptcy against the plaintiff, though he proved that it had cost
[51 so 302. to set it aside, and no “evidence was offered on behalf
of the defendant. And so where in an action for assault and
battery only 87. were assessed, though it appeared that his cure had cost
him 18/., and no evidence was given to the contrary.’ In one case,
where the action was for ranning over the plaintiff, whose thigh was
broken, and his surgeon’s bill came to 10/., a new trial was granted,
the jury having only awarded $d. damages. Lord Drnmaw said,
“A new trial on a mere difference of opinion as to amount may not
be grantable, but here are no damages at all.””’° On the other hand,
-in a later case, where the same damages were given in an action
against a surgeon for negligence, whereby the plaintiff lost his
thigh, a new trial was refused. Tuvpat, C. J., said, “It is not usual
with the court to grant a new trial on the ground that the damages
are smaller than the court may think reasonable. At any rate a
new trial ought not to be granted on such a ground, unless the
the amount or evidence of payment, a

verdict for a less amount than is due
will be set aside. Thus where de-

tiff for $50 and interest; and a new
trial was granted, on the grounds that,
if the note was not usurious, the plain-

fendant and A signed a note for $100,
payable in four months, and A passed
it to the plaintiff for $50, with a ver-
bal stipulation that, if $50 were repaid
within the four months, the note should
be given up. The declaration in
assumpsit contained a count on the
note, and one for money lent. The
jury rendered a verdict for the plain-

' Rendall », Hayward, 6 Bing. N.
C. 424; Forsdike »v. Stone, L. R., 3
C. P. 607; 87 L. J. C. P. 301; Wil-
son v. Hicks, 26 L. J. Ex. 242; Nichol
». Bestwick, 28 id. 4.

* Barker v. Dixie, wbi sup.

tiff must recover $100, as a penalty; if
the jury bottomed their verdict on the
first count, they should have found for
the full amount of the note; and if
they found on the second count, the
verdict was wrong, because the defend-
ant was no party to the contract.
Fowler v. Word, Harp. (8. C.) 372.

5 Apps v. Day, 14C. B. 112. And
see Forsdike v. Stone, supra.

4 Mauricet o. Brecknock, 2 Dougl.
509.

5 Donelly v. Baker, Barnes, 154.

® Armytage v. Haley, 4 Q. B. 917.
New Triat. 745

judge who tried the cause is dissatisfied with the smallness, which, as
the learned judge has informed us, is not the case in the present
instance.”! So strict is the rule, that no remedy can be had where
the jury only gave 1s. damages, though it was admitted that they
would have given 40s. had they known that amount was necessary
to carry costs.” Nor will a new trial be granted on the ground that
from the smallness of the damages the jury must have come toa
compromise, unless from the circumstances of the case, it is evident
that there has been a total refusal of the jurors to discharge their
duty, and the verdict is necessarily wholly inconsistent; as, for in-
stance, where there is a verdict for the plaintiff of 4d. on a bill of
exchange, where the only plea was that the bill was forged.*
Sec. 796. New trial will be granted where there is a measure of damages.
Even independently of misconduct on the part of the jurors a
new trial will be granted where the action is on a contract for a
fixed sum, and by some mistake or accident a verdict has been taken

for a smaller amount; as, for instance, on a *covenant to pay [#513]

4 5

or as liquidated damages ;° or
in an action on a promissory note, where less’ than the amount has
been given ;° or interest has been withheld without proper cause.’
And so it was allowed where the plaintiff, in an undefended action
for a mortgage debt, had omitted to have interest assessed.”

a sum of money generally ;

Sec. 797. Contingent assessment.

Where the plaintiff has suffered damages to be assessed contin-
gently, he cannot afterward claim anew trial, on the ground of their
being insufficient. *

1 Gibbs v. Tunaley, 1 C. B. 640. 6 Russel v. Ball, Barnes, 455.
? Mears o. Griffin, 1 M. & Gr. 796; ‘Laing v. Stone, 2 M. & R. 561;
Kilmore v. Abdoolah, ‘supra. Du Belloix ». Waterpark, 1 D. & R.

3 Richards v. Rose, 23 L. J. Ex. 8;9 16; Cameron v. Smith, 2 B. & A.
Ex. 218, 8. C. See Kelly. Sherlock, 308.
L. R., 1 Q. B. 695; 35 L. J. Q. B. 8 Baker v. Brown, 2 M. & W. 199.
212; per MELLOR, J.; Falvey v. Stan- See further as to setting aside a judg-
ford, L. R., 10 Q. B. 54; 44 L. J. Q. ment on the ground of mistake in
B. 7. claiming too little, Cannan ». Rey-
4 Anon., Salk. 647; Lethbridge v. nolds, 5 E. & B. 301; 26L. J. Q. B
Mytton, 2 B. & Ad. 772; Whitwell»v. 62.
Atkinson, 6 Mass, 272. 9 Morrish v. Murrey, 13 M. & W. 52;
5 Farrant v. Olmius, 3 B. & A. 692; Booth »v, Clive, 10C. B. 827.
Winn v. Young, 1 J. J. Marsh, (Ky.)
51.

94.
446 New Triat.

Sec. 798. New trial on the ground of damages being excessive.

The power of the court to grant a new trial, on account of the
excessiveness of damages, seems to be comparatively modern, and to
have sprung up when attaints fell into disuse. Accordingly the
court held in several cases that they had no right to interfere, where
there had been no misbehavior on the part of the jury, and there
was no measure of damages by which they could correct the mis-
take.” It is now, however, well acknowledged, that whether in
actions for malicious prosecution, words, or any other matter, if the
damages are clearly too large, the court will send the inquiry to
another jury. But it must appear from the amount of damages, as
compared with the facts of the case laid before the jury, that the
jury must. have acted under the influence either of undue motives,
or of some gross error and misconception on the subject.‘ And in
a case of uncertain damage, where matters have been left properly
for all the parties to the sound discretion of the jury, in a subject of
which they are competent and proper judges, a new trial will not
be granted, “ because if the court had been to fix the damages, they
might have given less.”° *The case must be very gross,
and the damage enormous, for the court to interpose.’ And
where the judge has recommended the jury to give nominal dam-
ages, and they award substantial damages, the verdict cannot merely
on this account be treated as perverse.’

Every case must of course be judged upon its own peculiar
facts. It may be useful, however, to give a few instances of the
manner in which the courts have exercised their discretion upon
this point.

[#514]

Sec. 799, Casesin which it has been refused. Trespass.

Where custom-house officers entered the plaintiff's dwelling-house
in the day, without a constable, but with a writ of assistance, to

1 Barker v. Dixie, 2 Stra. 1051. 5 Gilbert v. Berkinshaw, Lofft. 771,
* Wilford ». Berkeley, 1 Burr. 609; 774.
Duberley ». Gunning, 4 T. R. 651. 8 Per Yates, J., 3 Wils. 63. And see

5 Per MansFIELD, ©. J., Hewlett o. per Cur. 2 Wils. 250; and per Prat,
Crouchley, 5 Taunt. 277; Gilbert » C. J., id. 207.
Burtenshaw, Cowp. 230; Corkery 2. ‘Chilvers v. Greaves, 5 M. & Gr.
Hickson, 10 Ir. Rep. C. L, 174. 578.

4 Per Lord EtLENBoroves, Cham-
bers v. Caulfield, 6 East, 256.
New Tria. YAY

search for uncustomed goods, and stayed in the house abont an
hour, but broke open no door, or lock, or bolt, and did little or no
damage, sums of 1002. and 2002. were held not to be excessive.
Goutp, J., said, “ The entering the plaintiff’s house under color of
legal authority aggravates the trespass.” ! In trespass for forcible
entry into a dwelling-house, and remaining there three or four days
under color of a distress for rent, it appeared that one defendant
claimed a title to the property, which he chose to assert in this
manner, though without a shadow of right. The others were a
broker and assistant. The court refused to set aside a verdict for
1,0002.*. Trespass against a landlord for injury to his tenant’s crops
by entering to cut and remove timber without applying for leave.
The whole value of the crops was 200/., and the jury found a ver-
dict for 3007. The court refused to set it aside. Mavzx, J., said,
“If we were to hold that the jury, in estimating the damage for an
unlicensed trespass of this sort, are to be restrained to exactly the
amount of the injury sustained by the plaintiff, it would in effect
be placing the wrong-doer upon precisely the same footing as one
who enters with the owner’s permission. Besides, it is to be
observed that this was not the case of a single act of trespass, but
of a series of trespasses, persisted in day after day, and for [#515]
*several weeks, and that this was done for the pecuniary
benefit of the defendant.’* So where the defendant, a banker and
M. P., persisted in shooting upon the plaintiffs land, though
requested to desist, and used insolent language, 5002. was held not
to be excessive.*

Sec. 800. Assault.

Where the defendant struck the plaintiff in a quarrel, in the
course of which the plaintiff had called him a scoundrel, a verdict
for 2002. was sanctioned.* And Hnarn, J., said, “he remembered
a case, where a jury gave 500/. damages for merely knocking a man’s
hat off, and the court refused a new trial.” °

1 Bruce v. Rawlins, 8 Wils.61;Red- * Williams ». Currie, 1 C. B. 841,
shaw »v. Brook, 2 id. 405. See also 847. :
Thomas », Harris, 27 L. J. Ex. 353, 4 Merest ». Harvey, 5 Taunt. 442.

2 Bland v. Bland, 1 H. & W. 167. 5 Grey v. Grant, 2 Wiis. 252; Duck-

See Gregory o. Cotterell, 22 L.J.Q. ero. Wood, 1T. R. 277.
B, 217. 65 Taunt. 443.
448 New Tri.

Sec. 801. False imprisonment.

In the celebrated cases of arrest under general warrants, 3002. was
held not to be excessive in an action against the king’s messenger,
who had treated the plaintiff with great civility, and only detained
him six hours.!’ And in a more aggravated case of the same nature,
where the plaintiff was kept in custody for six days, a verdict for
1,0002. was sustained.” So 2007. damages were held not to be too
great where the plaintiff had been kept a night in custody on a
charge of felony.* And where the plaintiff in an action for false
imprisonment was a native of Minorca, and the defendant was the
governor, 3,000/. damages was allowed.‘

1

Sec. 802. Malicious prosecution.

Where the defendant, an attorney, brought seven indictments for
felony against his clerk, keeping the matter secret from him, and
gave no evidence when the case came on, upon which the plaintiff
sued him for a malicious prosecution, it was held that 2,0007. dam-
ages was not excessive; and that it’ was no excuse that the defend-
ant had obtained counsel’s opinion advising the prosecution, when
the case laid before him was not rightly stated. Mansriexn, C. J.,
asked, “ Could any one say that any rational man of character would
for 2,000/. put himself in this situation? If not, the damages are
not excessive.”*° And in another case, where the *plaintiff
was arrested and indicted for felony, out of mere revenge,
and without a shadow of pretense, 10,0002. was allowed.°

[*516]

Sec. 803. Seduction. Crim. Con. ;

It has been said in cases of seduction, that actions of that sort are
brought for example’s sake, and that although the plaintiffs loss may
not really amount to the value of 20s., yet the jury do right to give
liberal damages ;" accordingly 2002. was allowed in one case, though
-the defendant had been placed in circumstances of peculiar tempta-
tion by the female’s own mother.’ So in cases of crim. con., verdicts
of 5002. and 5,000/. were sustained, though in the former case the
defendant, who was a clerk at 502. a year, had been himself seduced

1 Huckle v. Money, 2 Wils. 205. * Hewlett ». Cruchley, 5 Taunt. 277.
> Beardmore ». Carrington, 2 Wils. ° Leith ». Pope, 2 W. Bl. 1827.
244. "Per Wiumot, C. J., Tullidge ».

° Edgell ». Francis, 1 M. & Gr. 222. Wade, 3 Wils. 18.
‘ Fabrigas v, Mostyn, 2 W. Bl. 929. 5 Bennett ». Allcott, 2T. R. 166.
New ‘TRrat. 49

by the wife; and in the latter, the plaintiff was at the time keeping
a mistress, and had permitted the defendant to take indecent liber-
ties with his wife in his presence.! And 2,000/. was held not to be
excessive, though some time before a deed had been entered into,
providing for the future separation of husband and wife, upon cer-
tain contingencies, but under terms which entitled him to her assist-
ance in the care of his children.’

Sec. 804. Breach of promise of marriage.

Sums of 4002. and 38,5002. have been allowed in actions for
breach of promise of marriage, according to the wealth of the
defendants.* .

Sec. 805. Trover.

In trover for a diamond necklace, part only of which was traced
into the defendant’s hands, the court refused to set aside a verdict
for the whole value, as the defendant’s affidavit did not allege that
the whole of it had never been in his possession.‘ And so in an
action for an apothecary’s bill, consisting of a great number of items,
a rule for a new trial was refused, where the jury had given a verdict
for the whole sum claimed, though every item was not proved, evi-
dence having been given as to some of them.° But a contrary
decision was given in another case, where the claim was for work
and *labor, and an entire verdict given, several of the items [#517]

being unsustained.*
2
Sec. 806. Mistake in assessment.

Where the plaintiff is willing to rectify any mistake in the assess-
ment, the court will not set aside the verdict if it can possibly be
sustained, as this would be to allow the defendant a fresh chance
of a finding upon the issues, under the pretext of objecting to the
amount of damages.” Nor will they, upon an application for a new
trial on the ground of excessive damages, hear afftdavits of the
defendant’s witnesses to explain or add to any thing said by them
at the trial.’

! Wilford v. Berkeley, 1 Burr. 609; 5 Wheeler ». Sims, 5 Jur. 151.
Duberley 7. Gunning, 4 T. R. 651; * Brewer v. Jackson, 5 Jur. 701.
sed quoere ? ™Thomas »v. Fredericks, 10 Q. B.

? Chambers v. Caulfield, 6 East, 244. 775.

‘Harrison v. Cage, Carth. 467; Phillips v. Hatfield, 8 Dowl. 882.
Wood o. Hurd, 2 Bing. N. C. 166. A verdict will not be set aside, in

4 Mortimer v. Oradock,12 L. J.C. P.
166. :
750

New Trrau

Where an excessive verdict is given, it is usual for the judge to
suggest to counsel to agree on a sum, to prevent the necessity of a

new trial.

case of tort, for excessive damages,
unless it clearly appears that the jury
committed some gross and palpable
error, or acted under some improper
bias, inference, or prejudice, or have
totally’ mistaken the rules of law by
which the damages are to be reg-
ulated. Whipple ». Cumberland Man.
Co., 2 Story (U. 8. C. C.), 661; Dodd
». Hamilton, Tayl. (N. C.) 81; Pom-
eroy v. Golly, Ga. Dec. 26; Longstreet
v. Reeside, id. 39; Harrisv. Halliday,
5 Miss. 838; Thompson ». French, 10
Yerg. (Tenn.) 452; Boyers v. Pratt, 1
Humph. (Tenn.) 90; Schlencker ».
Risley, 4 Ill. 483; Simpson o. Pitman,
13 Ohio, 365; Fisher v. Patterson, 14
id. 418; Allen ». Craig, 13 N. J. L.
294; Fripp 2. Martin, 1 Spears (8.C.),
236; Davis v. Ruff, Cheves (8. C.), 17;
Stott v. Ryan, 3 Brev. (S. C.) 417;
Aiken v. Bemis, 3 Woodb. & M. 348;
Carr v. Gale, id. 38; Wightman ».
Providence, 1 Cliff. (U. 8. C. C.) 524;
Palmer v. Fiske, 2 Curt. (U. S. C. C.)
14; Lynd 2. Picket, 7 Minn. 184; Stone-
seifer v. Sheble, 31 Mo. 243.

Where the evidence clearly shows
that the damages assessed by the jury
are excessive, the court will set aside
the verdict and reverse the judgment,
or allow the party to remit the excess.
Reasoner v. Brown, 19 Ark. 234; N.J.
Flax Co. 0. Milles, 26 N. J. L. 60.

In questions of damages for taking
gold from a mining claim, the defend-
ants cannot complain of excessive dam-
ages, if they do not show the correct
amount of gold taken out by them.
Antoine Co. v. Ridge Co., 23 Cal. 219.

A verdict in an action of personal
tort will not be set aside as excessive,
when it is not so large as to suggest
passion, prejudice, or corruption. Al-
drich v. Palmer, 24 Cal.513; Wheaton
». North Beach, etc., R. R. Co., 36
Cal. 590; McNamara 2. King, 7 IIL.
432; Ross». Innis, 35 id. 487; Illinois,
etc., R. R. Co. v, Simmons, 88 id. 242;
Bell v. Morrison, 27 Miss. 68; Allen 2.
Craig, 13 N. J. L. 294; Beuck ». Mc-
Gregor, 82 id. 70; Cropsey ». Murphy,

1 Hilt. (N. Y.) 126; Scherpf o. Sza-
deczky, 1 Abb. (N. Y.) Pr. 366.

It is not sufficient for a party, who
seeks a new trial, for the excessiveness
of the damages, merely to raise a doubt
whether they are not too large; but it
is incumbent on him to show affirma-
tively, and most satisfactorily, that they
are so, and to what extent. Clark v.
Whitaker, 19 Conn. 319; and for a
slight excess the court will not remand
a cause. Milton ». Blackshear, 8 Fla.
161; Billingsley ». Groves, 5 Ind. 553;
Luckett v. Clark, Litt. (Ky.) Sel. Cas.
178; Caldwell v. Roberts, 1 Dana (Ky.),
355; Long v. Perry, Hard. (Ky.) 317;
Van Slyck v, Hogeboom, 6 Johns. (N.
Y.) 270; Wright ». Bonta, 19 Tex.
385.

If, by any calculation, which the
evidence will reasonably support, the
verdict can be sustained as to amount,
a new trial should not be granted,
whether it be the same calculation
made by the jury, or not. Dacy ».
Gay, 16 Ga. 203.

Where the jury differs slightly in
opinion from the court, the latter will
not, of course, interfere, but will con-
sider each particular case; and if the
damages awarded are too high, relief
may be granted by ordering a new
trial. Blanchard v. Morris, 15 IIL. 35.

A verdict in an action for malicious
arrest ought to be set aside, if the rec-
ord discloses that the evidence clearly
established the fact that the plaintiff
was a man of very bad character, and
that the jury entirely omitted the fact
in their estimate of damages ($20,000).
Walker ». Martin, 48 Ill. 508.

The verdict of a jury will not be set
aside, merely because higher damages
were assessed by the jury than the
court would have given, on the same
evidence. Chenowith 2. Hicks, 5 Ind.
224.

But if judgment was rendered for a
larger sum than that claimed in the
complaint, it is‘a sufficient ground fora
new trial, Roberts». Muir, 7 Ind. 544;
Lester v, Barnett, 833 Miss. 584; Mc-

17 Bing. 320.
New Tria.

751

Sec. 807. Cases in which a new trial was allowed.
The following are instances of a contrary discretion being exer-

cised by the court.

Intire v. Clark, 7 Wend. (N. Y.) 330;
Dox v. Dey, 3 id. 356. To the con-
trary, Webb »v. Thompson, 23 Ind.
428; Raymond. Williams, 24 id. 416.

Upon the question whether a ver-
dict is excessive, the fact that it con-
curs with a previous one, is a fact of,
weight in its favor. Russ o. War
Eagle, 14 Iowa, 363.

And a new trial will not be granted,
unless the damages are outrageously
excessive. Worford ». Isbel, 1 Bibb
(Ky.), 247; North v. Cates, 2 id. 591;
Roberts ov. Swift, 1 Yeates (Penn.), 209;
Hinchman vo. Whetstone, 23 Ill. 185;
Respass 0. Parmer, 2 A. K. Marsh. (Ky.)
865; Webber ». Kenny, 1 id. 345;
Vanch »v. Hall, 3 N. J. L. 814; Deacon
v. Allen, 4 id. (1 South.) 338; Taylor
o. Giger, Hard. (Ky.) 586; Vanzant ».
Jones, 3 Dana (Ky.), 464; Owings v.
Ulory, 8 A. K. Marsh. (Ky.) 454.

Where the law recognizes some fixed
rules and principles in measuring the
damages, by which it may be known
that there is an error in the verdict, as
in actions on contracts, or for torts
done to property, the value of which
may be ascertained by evidence, the
verdict may be set aside for inadequacy
or excess. Coffin v. Coffin, 4 Mass.
1, 41; Commonwealth v. Norfolk, 5 id.
435; Fish v. Roseberry, 22 Ill. 288;
Hopkins ». Myers, Harp. (8. C.) 56.

Whenever the court is satisfied that
there is no reasonable measure between
the injury and the compensation, it is
their duty to grant a new trial. Samp-
son ». Smith, 15 Mass. 365; Woodson
». Scott, 20 Mo. 272.

But where the amount of damages
is matter of opinion merely, the fact
that the jury have fixed them at a
greater or less sum than any of the
witnesses is not a ground for a new
trial. Brewer». Tyringham, 12 Pick.
(Mass.) 547.

Nor where the plaintiff recovered a
verdict for a trifling amount more
than the facts alleged in his declara-
tion would entitle him to, will the
court set aside the verdict, and order
a new trial, for the correction of the
error, provided the plaintiff releases

Where the action was for diverting plaintiff’s

the excess from the amount of his
judgment. King », Howard, 1 Cush.
(Mass.) 137.

A verdict will not be set aside as
excessive, unless it evinces a mistake
in principle, or the influence of par-
tiality or prejudice. Treanor v. Don-
ahoe, 9 Cush. (Mass.) 228; Sexton ».
Brock, 15 Ark, 345; Wells v, Sanger,
21 Mo. 354; Boyce v. California Stage
Co., 25 Cal. 460; Snelling v. Darrell,
17 Ga. 141; Beaulieu v. Parsons, 2
Minn. 37; Goetz v. Ambs, 27 Mo. 28;
Kennedy v. North Missouri R. R. Co.,
36 Mo. 351; Allred v. Bray, 41 id.
484; Cook v. Hill, 3 Sandf. (N. Y.)
841; McRae v. Lilly, 1 Ived. (N. C.)
L. 118; Richardson v. Murray, Cheves
(S. C.), 11; Barnette v. Hicks, 6 Tex.
352; McGehee v. Shafer, 9 id. 20;
Cook v. Dela Garza, id. 858; Birchard
». Booth, 4 Wis. 67. ;

And in all cases where there is no
rule of law regulating the assessment
of damages, and the amount does not
depend on computation, the judgment
of the jury, and not the opinion of
the court, is to govern, unless the
damages are so excessive as to war-
rant the belief that the jury must
have been influenced by partiality or
prejudice, or have been misled by
some mistaken view of the merits of
the case. St. Paul ». Kuby, 8 Minn.
154; George v. Law, 1 Cal. 363; Ja-
cobs v. Bangor, 16 Me. 187; Worster
v. Canal Bridge, 16 Pick. (Mass.) 541;
Coffin ». Coffin, 4 Mass. 1; Taunton
Manuf. Co. v. Smith, 9 Pick. (Mass.}
11.

In actions for wrongs—as libel,
slander, false imprisonment, seduction,
etc., —the courts will not grant a new
trial on the ground of excessive dam-
ages, unless the amount of damages be
so flagrantly outrageous and extrava-
gant, as manifestly to show that the
jury must have been actuated by
serious mistake, or by passion, par-
tiality, prejudice, or corruption. Cole-
man »v. Southwick, 9 Johns. (N. Y.)-
45; Southwick ». Stevens, 10 id.
443; Douglass » Tousey, 2 Wend.
(N. Y.) 352; Finch v. Brown, 13 id.
152 New

TrrAu.

water-course, and 3,000/. was given, the court set it aside as being
excessive and not warranted by the evidence ; it being a mere ques-
tion of property as stated on the record, where there was some-

601; Bump v. Betts, 23 id. 85; Knight
v. Wilcox, 18 Barb. (N. Y.)212; Clapp
». Hudson River R. R. Co., 19 id. 461;
Curtis 7. Rochester & Syracuse R. R.
Co., 18 N. Y. 534; Travis v. Barger,
24 Barb. (N. Y.) 614; Hagar v. Dan-
forth, 8 How. (N. Y.) Pr. 485; Wa-
ters v. Bristol, 26 Conn. 398; Fidler
». McKinley, 21 Til. 308; Guard ».
Risk, 11 Ind. 156; Harris ». Rupel, 14
id. 209; Paukett v. Livermore, 5
Iowa, 277; Stevenson v. Belknap, 6 id.
97; Bell ». Howard, 4 Litt. (Ky.) 117;
Holburn v. Neal, 4 Dana (Ky.), 120;
Letton v. Young, 2 Metc. (Ky.) 558;
Humphries v. Parker, 52 Me. 502; Bod-
well v. Osgood, 3 Pick. (Mass.) 379;
St. Martin ». Desnoyer, 1 Minn. 156;
Fallenstein 0. Boothe, 18 Mo. 427;
Ogden v. Gibbons, 5 N. J. L. 518;
Deacon ». Allen, 4 id. 338; Clark 0.
Binney, 2 Pick. (Mass.) 113; Oakes 2.
Barrett, 7 id.81; Coleman o. Southwick,
9 Johns. (N. Y.)45; Potter v. Thomp-
son, 22 Barb. (N. Y.) 87; Fry 0. Ben-
nett, 9 Abb. (N. Y.) Pr. 45; Morgan 0.
Livingston, 2 Rich. (S. C.) 573; May-
son v. Sheppard, 12 id. 254.

But if the verdict be clearly excess-
ive, it will be set aside. Harris 2.
Panama R. R. Co., 5 Bosw. (N. Y.)
312; Walworth v. Pool, 9 Ark. 394;
Clark v. Gridley, 35 Cal. 399; Pickard
v. Bates, 88 Ill. 40; Pierce ». Roche,
40 id. 292; McNutt v. Lancaster, 17
Miss. (9 Smed. & M.) 570; Guerry 2.
Kerton, 2 Rich. (8. C.) 507; Josey ».
Wilmington, etc., R. R. Co., 11 id.
399; Beveridge v. Welch, 7 Wis. 465.

In an action for a malicious prosecu-
tion, the defendant openly admitted
the innocence of the plaintiff, although
he insisted that he had acted from
probable cause, and the plaintiff ad-
mitted that the defendant acted with-
out bad motives, though rashly and
improperly. The jury gave a verdict
for $1,500. It was held that the case
was one for compensatory and not for
vindictive damages, and that, as the
damages were excessive, a new trial
should be granted. Wiggin v. Coffin,
3 Story, 1.

At the trial of an action for the in-

fringement of a patent for a writing
fluid, there was no proof of the cost
of the manufacture of the fluid, or of
the sale price, but it was in evi-
dence that sales were highly profitable,
and that the defendants had manu-
.factured and sold very large quantities.
No proof was offered by the defend-
ants in regard to the amount of their
manufacture or sales, nor of the value
of the articlein themarket. The jury
found a verdict for the plaintiff for
$2,000. On a motion for a new trial,
it was held that the verdict must stand,
it not being a cause of palpable ex-
travagance. Stephens o. Felt, 2
Blatchf. (U. 8. C. C.) 37. So where
on the trial of a patent case, the court
erroneously instructed the jury to allow
the plaintiff, as part of his actual
damages, his expenditures for counsel
fees and other charges necessarily in-
curred to vindicate the rights given
him by his patent, and not being taxa-
ble costs, but the same result, very
nearly, might have been properly
reached by the power of the court to
treble the damages. It was held ona
motion for a new trial for excessive
damages, in which the misdirection of
the court was not assigned as a reason
for a new trial, that the verdict would
not be disturbed. Stimpson ov. The
Railroads, 1 Wall. Jr. (U. 8.) 164.

In an action of trespass for entering
the plaintiff’s close and driving off his
hogs, though proved to have been
worth but $25, a verdict of $100 was
held not excessive, taking into account
the invasion of the plaintiff's premises,
the vexation to his feelings, depriva-
tion of his property, its value, and
“‘smart money,” or exemplary dama-
ges. Clark v. Bales, 15 Ark. 452.

In an action for a vexatious suit, a
new trial will not be granted on the
ground of excessive damages, unless
they are outrageous; and where the
actual loss proved was $70, and the
jury gave $200 damages, it was held
an insufficient ground for a new trial.
Ives v. Bartholomew, 9 Conn. 309.

Where the jury, in an action of
slander, charging the plaintiff with
New TRriat.

753

thing to measure the damages by, namely, the deterioration of the
property itself, and therefore not like cases of personal injuries, as

actions for adultery, slander, etc.

theft, swindling, cheating, etc., ren-
dered at first a verdict for the plaintiff,
with $1,100 damages, from which the
judge dissented, and after expressing
his own views and urging reasons
against so large an amount of damages,
returned them to a second considera-
tion, the result of which was a verdict
for $800 damages, a new trial for
excessiveness of damages was refused.
Woodruff ». Richardson, 20 Conn.
238.

Where the jury, in action for a
breach of promise to marry, gave to
the plaintiff $1,500 damages, it was
held that though they were higher
than the court would have awarded,
yet, as they did not appear to be
flagrantly excessive, or disproportioned
to the injury received by the plaintiff,
the court would not disturb the ver-
dict on that ground; the assessment
of damages, in a case, being peculiarly
within the province of the jury. Clark
». Pendleton, 20 Conn. 495. A verdict
for $3,600 was held not excessive
where the defendant was shown to be
worth $25,000.

In an action of slander for calling
the plaintiff a whore, the refusal of
the court to set aside, as excessive, a
verdict for the plaintiff for $4,250, was
held to be error, when it appeared that
the defendant was actuated by a desire
to protect his family from an unworthy
neighbor, that he had no malice toward
the plaintiff, that he was so poor that
he was unable to give security on the
appeal, and that the plaintiffs con-
duct was forward ‘and suspicious,
although no act of prostitution was
proved. Beggarly v. Craft, 31 Ga.
309.

Where no special injury was shown,
a verdict of $1,000 for ejecting a
passenger, who refused to pay his fare,
at a place some distance from the sta-
tion, was held to be so excessive that
the judgment was ordered to be set
aside. Terre Haute, etc., R. R. Co.
». Vanatta, 21 Ill. 188.

In an action against a railroad com-
pany for running over the plaintifi’s

95

Though they said that even in a

team, and outing off the toes of one
of the plaintiff's feet, it appeared that
the total injury to the team, together
with the expense of nursing and medi-
cal. attendance of the plaintiff,
amounted to a little over $600. The
plaintiff was a farmer, and was still
able to ride and to superintend farm
work. A verdict for $5,875 was set
aside as excessive. Chicago, etc., R.
R, Co. v. McKean, 40 Ill. 218.

‘Where, in an action of trover for
property worth but $15, the jury gave
a verdict for $100, a new trial was
granted for excessive damages, Outton
v. Barnes, Litt. (Ky.) Sel. Cas. 136.

Where a pole used as a toll-gate
upon a turnpike road was soinsecurely
fixed as to form an obstruction to the
road, and a passenger traveling in the
stage-coach along the road had his
thigh badly fractured by the upsetting
of the coach in the night-time, occa-
sioned by the running of the horses
and coach against the pole in conse-
quence of the driver failing to see the
obstruction. It was held in view of
all the evidence, and the serious, if
not irreparable injury done to plaintiff,
that a verdict of $4,000 in his favor
against the turnpike company was not
excessive or unauthorized by the facts.
Danville, etc., Co. v, Stewart, 2 Metc.
(Ky.) 119.

In an action by an administratrix to
recover damages for the killing of the
intestate, her husband, by the willful
neglect of the defendant, the facts
proved showed that the killing, al-
though not intentional, was the result
of perfect recklessness, and, as such,
rendered the defendant liable for the
civil injury produced by his willful
negligence. A verdict for $1,000 was
held not to be excessive, even if puni-
tive damages were not allowable.
Chiles v. Drake, 2 Metc. (Ky.) 146.

Where a verdict was for the sum of
$317.46, and, by the evidence, the
party was not entitled to more than
$150, held, that a new trial should be
granted, unless the plaintiff would re-
mit the excess and interest from the
754

New Triau.

case like the present, which was attended with several circumstances
of aggravation, they would not measure the damages which the jury
had given in a nice balance; but making a very liberal allowance

date of the writ.
Me. 247.

In trespass quare clausum, for expel-
ling the plaintiff and his family from
his dwelling-house, the court refused
a new trial, sought on the ground that
the damages , which were: $500, were
excessive. Reed v. Davis, 4 Pick.
(Mass. ) 216.

In an action for damages against a
railroad corporation by a woman who,
by being struck by their locomotive
engine, had lost one arm and the use
of the other, and been otherwise much
bruised and injured, so as greatly to
impair her health and memory, the
plaintiff at different trials obtained
three verdicts of $15,000, $18,000 and
$22,250, respectively, the first two of
which were set aside for error in the
instructions of the judge; the court
refused to set aside the third on the
ground that the damages were excess-
ive. Shaw v. Boston, etc, R. R.
Corp., 8 Gray (Mass.), 45.

A new trial was awarded for excess-
ive damages where $2,000 were given
for assault with a whip. Goetz v.
Ambs, 22 Mo. 170. .

A verdict finding the value of a
chattel to be $45, and assessing $100
for the use or detention of it from the
commencement of the suit to the time
of the rendition of the verdict, was
set aside on account of excessive
damages. Schnette v. Sutter, 23 Mo.
240.

In an action for words charging a
felony, a verdict for $400 was set
aside as excessive. Vanch 2. Hall, 3
N. J. L. 5:8.

Where an attachment was sued out
on a paid judgment, and property to
the amount of $180 sold, and the de-
fendant in the attachment for a malic-
ious prosecution recovered $750, the
court refused to grant a new trial on
the ground of excessive damages.
Bump ». Betts, 23 Wend. (N. Y.) 85.

Where a passenger on arailroad had
his leg broken and some flesh wounds
in the head, by a collision, and was
restored to sound health after about

Jewell v. Gage, 42

ten months, but the injured leg was
left somewhat shorter than the other,
it was held that a verdict for $6,000
damages was excessive, and a new
trial was ordered, unless -the plaintiff
would stipulate to reduce the verdict
to $4,000. Clapp v. Hudson River R,
R. Co., 19 Barb. (N. Y.) 461.

In considering the evidence in rela-
tion to past and to future disability of
a passenger injured by a collision, the
court held that a verdict of $4,500 was
not so excessive as to indicate par-
tiality, prejudice, passion or any thing
improper in the jury. Curtiss v.
Rochester, etc., R. R. Co., 20 Barb.
(N. Y.) 282.

Where in an action by a father as
next of kin to recover damages of the
defendant in negligently causing the
death of his son, four years of age,
the jury rendered a verdict for $1,500.
It was held that the damages were ex-
cessive, and that a new trial should be
granted. Lehman »v. Brooklyn, 29
Barb. (N. Y.) 234.

The plaintiff in a suit for false im-
prisonment was arrested about 6:30 A.
M., by a public officer, was taken to
the police court and there kept for
some time; was then required to ap-
pear again at 10 a. m., and allowed to
go for the interval; he appeared at
that time, and, no one appearing to
complain against him, he was dis-
charged, under his promise to appear
again if required. The defendant, a
private person, requested the arrest to
be made, intimating that the plaintiff
had committed a felony, and saying:
“Take him in charge for robbing a
bank in Rhode Island.” It was held
that an award of $2,000 damages was
excessive, and that a new trial should
be granted. Brown v. Chadsey, 39
Barb. (N. Y.) 253.

The court refused in an action of se-
duction to set aside a verdict for $5,000
against the defendant on the ground
of excessive damages, as they did not
consider the amount so extravagantly
excessive as to imply partiality, cor-
ruption or undue influence in the jury,
New Triat.

755

in that respect, they were still bound to take care that the verdict
should not greatly exceed the damage proved. They ordered the
former verdict, however, to stand security for the damages that

although the court would have been
better satisfied with a smaller verdict.
Ingerson v. Miller, 47 Barb. (N. Y.)47.

The plaintiff recovered a verdict
for $8,000 as damages for the loss of
his hand, caused by the alleged negli-
gence of employees on a ferry boat be-
longing to and under the control of
the defendant at thetime. The plain-
tiff was a cooper by trade, but em-
ployed as a teamster at the time of the
injury. There were some grounds for
belief that the plaintiff's own negli-
gence contributed to the injury; and
there was little evidence of either his
former or present capacity for labor,
and none as to the amount of his ordi-
nary earnings. It was held that the
damages were excessive, and that a
new trial must be granted, unless the
plaintiff would reduce the damages to
$6,000. Murray ». Hudson River R.
R. Co., 47 Barb. (N. Y.) 196.

In an action to recover damages for
the death of a woman killed by the
negligence of the defendant, it ap-
peared that she was strong and healthy,
about fifty years of age, and a widow;
that her services commanded $1 a day
beside her board; that she died intes-
tate, leaving a small property; and
that her children were of age and had
left her. Held, that a verdict of $3,500
was so excessive that anew trial would
be granted unless the plaintiff would
remit $2,000. McIntyre v. New York,
etc., R. R. Co., 47 Barb. (N. Y.) 515.

In an action for trespass, in wrong-
fully entering the plaintiff's office, and
there making a violent assault upon
the plaintiff’s clerk, it appeared that
the defendant went there for the pur-
pose of demanding payment of a small
debt, with the malicious intent of pro-
voking a quarrel with the clerk, in
case he was not paid; and that he
wounded the clerk in pursuance of this
intention. Held, that a verdict of
$400 damages was not excessive.
Walker v. Wilson, 8 Bosw. (N. Y.)
586. ;

A verdict of $4,500 for an injury
to the plaintiff, causing the loss of an

arm, occasioned by the negligence of
the defendant’s servants, is not excess-
ive. Mentz v. Second Avenue R. R.
Co., 2 Robt. (N. Y.) 356.

The defendant’s son had been en-
couraged by the plaintiff to visit his
house, and had had an illegitimate
child by his daughter. The characters
of the plaintiff's wife and other daugh-
ter were proved to be impure. The
defendant, in a passion, before many.
persons, charged the plaintiff with
having stolen his son. from him, and
added that he, the plaintiff, kept a
whore-house. A verdict in an action
of slander was found for the plaintiff
for $5,000, and a new trial was gran-
ted. Nettles v». Harrison, 2 McCord
(8. C.), 230.

Where the jury, on the second trial
of an action of trespass, committed
upon the plaintiff's land, attended with
insult and other aggravation, returned
a verdict for $3,000, which was $500
higher than the former verdict, the
court refused to grant a new trial, on
the ground of excessive damages.
Johnson 2. Hannahan, 3 Strobh. (8. C.)
425.

A verdict of $5,000, for breach of
promise, coupled with seduction,
held, not to be so excessive as to jus-
tify reversal. Goodall v. Thurman, 1
Head (Tenn.), 209.

A verdict being rendered for the
plaintiff for $25 more than the evi-
dence for the plaintiff warranted, the
court, apprehensive that there was
culpable inattention or indifference on
the part of the jury, did not ordera
remittitur, but remanded the cause for
anew trial. Illies ». Diercks, 16 Tex.
251.

In an action against a railroad com-
pany for eee causing the death
of the plaintifi’s daughter, ten years
old, held, that verdict for the plain-
tiff of $3,775 was so excessive as to
show prejudice or partiality on the
part of the jury, and therefore must
be set aside. Potter v. Chicago R. R.
Co., 22 Wis. 615; Macon, etc., R. R.
Co. ». Winn, 26 Ga. 250; Swartzel a.
56 New Triat.

might be given on the second trial.!_ And where, in an action for
assault, it appeared that the plaintiff was'’servant to the defendant,
and that on receiving a slight blow for impertinent behavior he
had fallen upon his master, and beaten him violently, a verdict of

40s. was set aside as excessive.”

In a later case an importunate

beggar having refused to quit defendant’s house, defendant had

%
pele night at an inn.

him *arrested by a constable, and kept in custody one
The next day he was brought again

before the defendant, and said he must have some money, upon

Dey, 3 Kans. 244; Woodward ». Paine,
15 Johns. N. Y.) 493.

Where a passenger traveling on a
half-fare ticket, who was a clergyman
receiving a salary, of $1,400 per
annum, in shutting a car window had
one arm broken by a standard of a
lumber car standing on a side track,
and was thereby detained from his
usual duties for eight weeks and suf-
fered great pain from time to time for
eight months, held, that a verdict
against the railroad company for
$3,000 was not so clearly exorbitant
as to justify areversal. Western, etc.,
R. R. Co. v. Drysdale, 51 Ga. 644.

In an action for personal injuries
occasioned by a defective sidewalk,
causing loss of use of the plaintiffs
arm, from a gradual wasting away of
the muscles, giving her constant pain,
held, that a verdict for $3,200 was not
so clearly exorbitant -as to justify a
reversal. Ottawa v. Sweely, 65 Ill.
434.

And in an action by a nurse against
a city for the fracture of her right
arm at the wrist, occasioned by a
broken board in a sidewalk, a verdict
in her favor. of $1,000 was held not
excessive. Chicago o. Jones, 66 IIl.
349.

So, in an action against a city for
an injury occasioned by a sidewalk,
six feet above the level of the street,
being left without any guards or rail-
ings, whereby the plaintiff was thence-
forth to the trial—five years—an
invalid, suffering great pain, a verdict
in her favor for $5,000 was held not
excessive. Chicago v. Langlass, 66
Til. 361.

Pleydell v. Earl of Dorchester, 7
T. R. 529.

A verdict for $3,000 in favor of an
administratrix against a railroad com-
pany for wrongfully causing the death
of her husband, leaving an infant
child — sustained. Illinois Central R.
R. Co. v. Hoffman, 67 Ill. 287.

A verdict in favor of a laborer for
$9,000 for an injury resulting from
negligence of a co-employee, attended
with great bodily suffering, and caus-
ing disability for life, was held not
excessive. Deppe v. Chicago, etc., R.
R. Co., 88 Iowa, 592.

Nor a verdict of $4,500 for the
negligent killing of one’s intestate,
a laborer sixty years old, of good
health and industrious habits. Walter
v. Chicago, etc., R. R. Co., 39 Iowa,
33.

In an action by a passenger against
a railroad company for an assault by a
brakeman with an iron poker, crack-
ing the external table of the skull and
threatening final palsy of the optic
nerve, a verdict in $4,000, including
punitive damages, was held to be not
so clearly excessive as to justify a re-
versal of the judgment. Hanson ».
European, etc., R. R. Co., 62 Me. 84.

A verdict of $8,000 for severe per-

‘sonal injuries caused by gross negli-

gence, held not excessive. Chicago,
etc., R. R. Co. v. Wilson, 63 Ill. 167.
But in all cases the question as to
whether a verdict is excessive or in-
adequate must depend upon the pecu-
liar facts of each case, and be measured
by the nature and character of the
injury, as well as the act creating it,
and the cases afford but little aid in
its solution.

* Jones 0. Sparrow, 5 T. R. 257,
New Triau. W567

which defendant told him he might have two sovereigns, or go
before a magistrate. Plaintiff consented to take the money, but
said he must have something more to pay his expenses, upon which
defendant gave him half-a-crown and some refreshment, and
plaintiff went away. He sued defendant, and recovered 1002., no
plea of accord and satisfaction having been pleaded. A new trial
was granted, on the ground that he had himself set a limit upon
his demand.

Sec. 808. New trial where verdict is under £20.

The courts make it a rule not to grant a new trial when the ver-
. dict is for less than 20/., unless they can grant it without costs.’
This rule, however, does not apply where the matter in dispute
involves a question of permanent right,® nor where the verdict is
perverse, nor does it apply to cases of replevin.* And in a recent
case, where the verdict was under 20/., a new trial was granted, on
the ground that the judge who tried the cause was dissatisfied with
the verdict, and that there was an uncontradicted affidavit that one
of the jurymen had misconducted himself, by expressing a strong
opinion against the defendant, when he had not heard his case,
but.only that of the plaintiff." Nor does the rule extend to cases
tried before an inferior court on a writ of trial,’ in which a new
trial will be granted unless the damages are under 57.°

A judgment may be maintained as to part, and reversed as to
damages.’

' Price vo. Severn, 7 Bing. 316.

5 Hdgson v. Cardwell, L. R., 8 C. P.
v. Phillips, 1 C. & M. 26; 647

 

Woods v. Pope, 1 Bing. N. C. 467.

3 Turner v. Lewis, 1 Chitt. Rep. 265;
Allum v. Boultbee, 9 Ex. 739, overrul-
ing Sowell v. Champion, 6 A. & EH.
407.

4 Freeman ». Price, 1 Y. & J. 402.
A perverse verdict would seem to be
one which is contrary to the direction
of the judge, there being no dispute
as to the facts; see per Jarvis, C. J.,
in Hawkins ». Alder, 18 C. B. 640;
and per BRAMWELL, By in Adams 2.
Midland Ry. Co., 31 L. J. Ex. 35.

® Allum »v. Boultbea, ubi sup. The
rule is not altered by the C. L. P. act,
1854, 17 and 18 Vict., ch. 125, § 44;
Hawkins ». Alder, 18 ©. B. 641, per
Wiies, J.

‘Taylor v. Helps, 5 B. & Ad. 1068.

8 Packham v. Newman, 1 C. M. &
R. 585; Fleetwood v. Taylor, 6 Dowl.
796.

9 Frederick v. Lookup, 4 Burr. 2018;
Cuming v. Sibly, id: 2489. And see
Ord. 39, R. 4; Ord. 58, R. 5.
158 Damacss in Actions ror Insuncrions, ETO.

[*519] *CHAPTER XLIII.
DAMAGES IN ACTIONS FOR INJUNCTIONS OR SPECIFIC PERFORMANCE.

Sxc. 809. 21 & 22 Vict., ch. 27, Lord Caims’ Act.
810. Payment of money into court.
811. Damages in discretion of the court.
812. Special damage.
813. Damages under special prayer for relief.

Sec. 809. 21 & 22 Vict., ch. 27, Lord Cairns’ Act.

The Chancery Amendment Act, 1858 (21 & 22 Vict., ch. 27),
commonly called Lord Cairns’ Act, enacted that in all cases in which
the court of chancery had jurisdiction to entertain an application for
an injunction against a breach of any covenant, contract, or agree-
ment, or against the commission or continuance of any wrongful act,
or for the specific performance of any covenant, contract, or agree-
ment, it should be lawful for the same court, if it should think fit,
to award damages to the party injured, either in addition to or in
substitution for such injunction or specific performance.! The court
might cause the amount or the damages to be assessed, or any ques-
tion of fact arising in the suit to be tried, by a special or common
jury before the court itself,’ or before the court itself without a jury,’
or by a jury before a judge of the superior courts of common law at
Nisi Prius, or at the assizes, or before the sheriff of any county or
city.‘ New trials might be applied for; and where the trial had been
before the court without a jury, the application might be made
either to the judge before whom the trial was had or to the court of
appeal in chancery.*

Sec. 810. Payment of money into court.

Where the court awarded damages, and directed a trial or writ of
inquiry as to the amount, the defendant might, on obtaining leave

121 & 22 Vict., ch. 27, § 2. “Td., § 6.
Td, § 3. 5Id., § 5.
21d, § 5.
Damages 1x Actions ror Insunotions, Ere. 759

of a judge at chambers, pay money into court. In the event of a
larger sum for damages not being awarded, *the plaintiff had

‘ ae [*520]
to pay the costs of the trial or inquiry, unless the court
otherwise directed.’

Sec. 811. Damages in discretion of the court.

Under this act it was decided that it was in the discretion of the
court whether it would award damages, or leave the plaintiff to
obtain’ them at law, and this notwithstanding the “Chancery Regu-
lation Act, 1862” (25 & 26 Vict., ch. 42), commonly called Sir John
Rolt’s Act, which enacted that in all cases in which any relief or
remedy within the jurisdiction of the court of chancery was sought
in any cause instituted therein, every question of law or fact cogniza-
ble in a court of common law, on the determination of which the
title to such relief or remedy depended, should be determined by or
before the same court.’ Also that the court would not interfere to
award damages under 21 & 22 Vict., ch. 27, where it would not
have interfered to grant relief before the statute * — as, for example,
in a suit for specific performanve of an agreement for a partnership.‘
But damages were awarded although the case for an injunction
failed,* or although, from circumstances which arose after the insti-
tution of the suit, an injunction or specific performance could not
be decreed. For example, in a suit for specific performance, where
performance was obtained from the defendant before the hearing,
the court directed the damages to be assessed by a jury in a‘court of
common law.’ And where the suit was to restrain the infringement
of a patent, an inquiry was directed as to damages, although the
patent had expired pending the litigation.’ But the court would
not grant relief where the bill was filed for damages only. There-
fore, James, V. C., refused to entertain a bill filed so immediately
before the expiration of a patent that it was impossible to obtain

1 Consolidated Orders xli, Rule 40. 5 Catton 0. Wyld, 32 Beav. 266;

* Johnson ». Wyatt, 2 De G. J. & 8. Eastwood ». Lever, 4 De G.J.& S.
18; Swaine v. G. N. Ry. Co.,4 DeG. 114; 33 L. J. Ch. 355.

J. & 8. 211; 33 L. J. Ch. 399; Durell 6 Cory v. Thames Iron Works Com-
». Pritchard, L. R., 1 Ch. 244; 85 L. pany, 11 W. R. 589.

J. Ch. 223. 7 Davenport v, Rylands, L. R., 1 Eq.
3 Per GirFaRD, V.C., L. R., 7 Eq. 302; 35 L. J. Ch. 204.
116. . § Middleton v, Magnay, 2 H. & M.

4Scott o Rayment, L. R., 7 Eq. 283.
112.
760 Damacrs in Actions ror Insuncrions, ETC.

any equitable relief before the patent expired. He treated it as a
[#521] mere device to obtain an award *of damages in the court of
chancery instead of in a court of common law.?

The power of a court of equity to give damages under this act
was considered not to be confined to cases in which the plaintiff
could recover damages at law;* and the damages awarded differed
from those which could be obtained at law in being given by way
of compensation for permanent injury once for all, not as at law
where successive actions might be brought and damages recovered
toties quoties.°

Sec. 812. Special damage.

Damages were not awarded in addition to specific performance
unless special damage was shown to have resulted from the delay in
completing the contract."

Sec, 813. Damages under general’ prayer for relief.

They were awarded although not specifically asked for in the bill,
the general prayer for relief being considered sufficient.’

Lord Cairns’ Act is still in force, and the powers given by it to the
court of chancery are comprised and extended in the powers given
by the judicature acts to the high court of justice,’ to the chancery
division of which actions for specific performance are assigned.’
The practice will for the future be regulated by the orders and
rules made under the judicature acts. Money can be paid into court
at any time by leave of the court or a judge; * and such leave would
properly be given in any case in which the court in lieu of injunction
or specific performance directed an assessment of damages. Issues
of fact arising in actions in the chancery division can be ordered to
be tried at the assizes, or in London or Middlesex.’ Applications

1 Betts v, Gallais, L. R., 10 Eq. 392. ‘ awarded or refused damages, Morgan’s

3 Eastwood v. Lever, 4 De G. J. & Chancery Acts and Orders, 261, 4th ed.;
8.114; 33 L. J. Ch. 355. Kerr on Injunctions, 221; Joyce on In-

3 Per Lorp CrRaNwoRTH, C., Stokes junctions, 593; and 1 Daniell’s Chan-
». City Offices Co., Limited, 13 L.T. cery Practice, 946, 5th ed.

(N. 8.) 81. § Judicature act, 1878, § 24.
4 Chinnock ». Marchioness of Ely, 2 TTd., § 34.
H. &M. 220; 834 L. J. Ch. 399. 8 Ord. 30

5 Catton o. Wyld, 32 Beav. 266. ® Ord. 36, R. 29. The order must
See, further as to the act, and for cases show why it is expedient so to try.
in which the court, in its discretion, Ord. 36, R. 29 a.
Damages in Aotions ror Insunorions, ETO. 761

[#599] for new trials will be *to the divisional court or to the court
of appeal, according as the trial was with or without a

jury.
There do not appear to have been any decisions since the judi-
eature acts respecting damages in actions for injunctions or specific

performance to which it is necessary to advert.
1 Ord. 89, R. 2.

96
INDEX TO TEXT.

(See INDEX TO NorTss, page 801.)

ABANDONMENT, when loss is total without, 455.
when necessary to make loss total, 456-459.
notice must be given, except in case of freight, 459.
effect of ineffectual notice, where subsequent total loss, 459.
valid notice, when loss afterward becomes partial, 461.

ACCEPTOR, liability of. See Bruus, 345.

ACCIDENT, damages on an insurance against, 441.
action for injury caused by, 57.
when brought by executors. See Execurors, 675.
limited liability of ship-owners. See Carriers, 403-407.

ACCOUNT, when damages are recoverable in action of, 483.
liability of receiver for profits which he might have made, 484,

ACTIONS. See Costs or Actions.

ADJUSTMENT, example of, 475.
at foreign port, when binding on underwriters, 468.

ADULTERY, damages in suits for dissolution or judicial separation, 664.
claims are to be tried on same principles as actions formerly, 664.
general grounds of damages in action for, 664.
entire separation a bar to an action for, 665.
otherwise when partial, or not by deed, 665.
evidence of terms upon which the parties lived; when admissible, 163, 666,
infidelity of husband, 666,
previous character of wife, 667.
negligence of husband, 667.
solicitations by wife, 668.
wealth of defendant, 668.
former recovery against another defendant for adultery, 669.
application of damages in divorce suits, 669.

AGENT. See Princrpan AND AGENT.

AMENDMENT of postea under old procedure, 785.
present practice as to entering the findings, 735.
and amending the entries, 735.
application formerly made to the judge who tried, 736.
from what notes amendment might be made, 736.
must have been in furtherance of intention of jury, 737.
intention how ascertained, 737.
was made by virtue of statutes of misprision, 737.
up to what time it might be made, 737.
refused where there had been laches on the part of claimant, 738.
64 Inpex to Text.

ANIMALS, damages from breach of warranty of, against contagious disease,
272,

damages from acts of, 272.
where there is breach of warranty, expenses of keep may be recovered, 267.
limitations as to value of cattle in actions against carriers, 410.
in trover defendant cannot deduct keep from value, 505.
vendee may recover for keep in action on warranty, 267.

ANNUITIES, interest is not recoverable upon arrears, 227.

APPORTIONMENT, salary now within statute of, 329.
See Rent, 352-379.

APPRAISEMENT, selling without, 534. See InnzGaL DisTREss.
ARBITRATION, submission to, by executor, 685.
ARREST. See Farse ImprIsonMENT, 590 e¢ seq.

ASSAULT. See Fausz ImpRiIsonMENT, 590; Nea@urcEnce, 596.
ASSIGN, covenant not to, 379.

ASSIGNEE of a lease, his liability for breach of covenants, 366, 369, 423.
action by, against assignor, 180.
by assignor against, 423.'
of a debt takes subject to debtor’s right of set-off, 189.

ASSIGNEES IN BANKRUPTCY. See Bankruptcy, TRUSTEES IN.

ATTORNEY, may recover unless charges have been uselessly incurred, 158.
may set off bill though not delivered a month before action, 174.
contract with, is an entire one, 301.
only liable for negligence to the extent of loss resulting, 11, 611.

may show in bar of action that there has been none, 11, 611.
prospective damages against, 611.
damages where record is withdrawn, 612.

where cause is taken as undefended, 613.
costs as between attorney and client, 121.

AVERAGE, GENERAL, how defined, 468.

ship, freight and goods carried for traffic, contribute, 469.

deck goods, 469. .

bullion and jewels, unless carried on the person, or as part of luggage,

469.

provision and stores do not, unless carried as freight, 469.

goods carried by mariners, unless in lieu of wages, 469.

mariners’ wages do not, unless in case of ransom, 470.

goods sacrificed contribute, 470.

only property exposed to risk contributes, 470.

freight must have been pending at time of sacrifice, 470.

valuation of loss in case of goods or valuable articles, 471.
deck goods, freight, ship, 472.

when sale of goods for repair of ship constitutes an average loss, 478.
how valued, 478.
effect of subsequent loss of ship, 474.

money raised for general safety, 474.

mode of valuing property saved in case of ship, 474.
in case of goods, 475.
in case of freight, 475.

usual place of adjustment, 474.

example of adjustment, 475.
Inpex to Text. 765

AVERAGE, PARTICULAR, what is a total loss of goods free from, 460.
when a sale of goods for repairs amounts to a, 473.

AWARD, interest upon amount of, 224.
BAIL, actions by, against their principal, 430.

BAILEES, may recover full value of goods on policy of insurance, 451.
will be trustees of residue above interest for the owners, 451.
will recover in trover whole value of goods against a stranger, 504.
only amount of interest against owner, 504-505,

BALLOT ACT, damages for breach of duty of presiding officer, 11.
BANKRUPTCY, mutual credit in. See Srt-orr, 190-197.

BANKRUPTCY, TRUSTEES IN, actions by, 693 e¢ seg.
can only sue in respect of loss to the estate, 694.
may sue for breach of contract to employ, 694.
not for a mere personal wrong to the bankrupt, 694.
or trespass to lands or goods in his possession, 695.
unless some pecuniary penalty was annexed to it, 695.
or it has caused injury to the estate, 696.
nor for personal labor after bankruptcy, 697.
unless a large sum has been accumulated by it, 697.
or mixed with other debts for which they can sue, 697.
when bankrupt’s interest in a right of action of wife passes, 698.
bankruptcy of partner, 698.
not necessary to prove substantial damage, 695.
loss to the estate is the measure of damage, 696.
unless where the right to a specific sum has once vested, 696.

BEGIN, right to, when plaintiff proceeds for unascertained damages, 734.

BILLS OF EXCHANGE AND PROMISSORY NOTES:
interest always allowed on, up to time of signing judgment, 230, 342.
may be withheld, in case of laches, if not expressly reserved, 342.
not given while note in hands of alien enemy, 342.
where expressly reserved, runs from date, 342.
though no action could have been originally maintained, 343.
if given as a legacy, interest would run from maker's death, 348.
where not reserved, interest runs from maturity, 343.
if payable on demand, from demand, 343.
liability of drawer, indorser, or guarantor, for interest, 343.
when note payable by installments, 344.
does not run after a tender, 229, 344.
must be included in amount paid into court, 344.
cannot be recovered from maturity of bill unless produced, 344.
calculated at current rate of place whose laws govern payment, 345.
lex loci solutionis is the lex loci contractus, 345.
hence different liabilities of acceptor, drawer and indorser, 345.
where expressly reserved, governed by lex loct contractus, 229, 346.
when goods are to be paid for by bill, 223.
in trover for, 490, 498.
effect of want of failure of eunwtaienation between immediate parties, 347.
between remote parties, 347.
failure of consideration no answer, when once executed, 348.
or when contract still open, 348. .
or when only partial, 348.
but partial want of consideration may be set up, 349.
re-exchange, drawer, and indorser, liable for, 349.
but not acceptor, or maker of note, unless by agreement, 350.
766 Inpex to TExt.

BILLS OF EXCHANGE AND PROMISSORY NOTES — Continued.
protest, when allowed, 350.
expenses of, and noting when recoverable, 350.
costs of former action against plaintiff not recoverable, 119.
transferor, without indorsement, not liable for, 351.
unless bill is not what it purports to be, 351.
given to wife during coverture may be treated by husband as joint or
several property, 177.
consequences as to set-off, 177.
mutual credit constituted by taking, accepting or indorsing a, 191.
or by an agreement to accept, 191.
but not by an agreement to indorse, 192.
nor by holding a bill or note as trustee for another, 193.
action for goods sold to be paid for by bill, not maintainable during
time that it would have been current, 238.
but special action for not giving may be brought at once, 238.
. when paid for in advance by bill, which is dishonored, 263.
whether it will support a count for money paid by surety, 427,
damages in trover for, 490,497.

BOARD OF TRADE, inquiry by, before action against owner of ship in case
of loss of life or personal injury, 405 n.

BOND, provisions of 8 & 9 W. III, ch. 11. See Dusr, 335-339.
no more than penalty and costs can be recovered upon, 208.
liability of sureties upon replevin bonds, 406-409, 425
will not support a count for money paid by a surety, 427.
set off of joint and several bond, 177.

BREACH OF PROMISE OF MARRIAGE, 653-656.
wealth of defendant an aggravation, 653.
seduction an aggravation, 654.
mitigation of damages, bad character, or grossness of manners, 163, 654.
evidence in bar of action, 654.

BREACHES, assignment of, under 8 & 9 W. III, ch. 11. See Dest, 330-341.

BREAKING OPEN OUTER DOOR, effect of, in action against sheriff, 523.
difference between fi. fa. and distress, 524.

BROKER, set-off of debt from, in action by principal, 181.
liable for negligence in effecting insurance, 700, 701.

BUILD, covenant to, 372.

CAIRNS’, Lord, Act. See Caancery Drviston.
CALLS. See Pusuic Company.
CAMPBELL’S, Lord, Act. See Exmcuror.

CARGO, actions for freight of, 380-387..
for not supplying, 387-392.
for not carrying, 394.
for delay in carrying, 399.
for loss or injury to, 400-406. See Carriers.

CARRIERS,
I. Actions by, for cost of carriage, 380-386.
packed parcels, 381.
where entire ship engaged at a specified rate, 382.
when payment is to be made by ton, 382.
when part has not been delivered, 383.
Inpex to Text. %67

CARRIERS — Continued.
weight, how calculated, 383.
when cargo changes in bulk or weight, 383.
where freight is fixed with reference to certain articles, 384.
evidence in reduction of damages, 386.
time during which vessel was under repair, 386.
port and pilotage charges, 386.
value of missing goods cannot be set off, 386. -
except by counter-claim, 387.
action for not supplying a cargo, 387-397.
measure of damage, 387
mode of calculating amount which would have been earned, 387.
captain must try to earn freight after breach, 387.
but not before breach, 388.
when freighter is left at liberty as to species of cargo, 388.
not bound to supply ballast, 388.
cargo must be loaded according ‘to custom of port, 389.
stipulation to pay a fixed sum in default of supplying cargo, 390-391.
Tight of ship-owner to retain freight after it is earned, 390-391.
when stipulated sum has not become due, 391.
profit made by ship-owner with consent of charterer, 392,
claims for detention of ship, 392.
* demurrage clause, 392.
dangerous goods, 393.
II. Actions against carriers, 894-414.
for not taking a cargo, 394.
damages must be the immediate result, 396.
costs of former action not allowed, 304, 396.
natural result of breach, 397.
increased price of goods in place of those which ought to have been
brought, 397.
malicious refusal to carry, 398.
for not carrying passengers, 398.
expense of substituted conveyance may be recovered, 398.
if it was reasonable for the passenger to take another conveyance,
398.
and expenses incurred during detention, 398.
mere inconvenience a ground of damage if capable of assessment, 398.
but not circumstances which could not have been foreseen, 399.
for delay in carrying passengers or goods, 399.
whole value of perishable goods may be recovered, 399.
and the fall in market value of goods sent by land or consigned for imme-
diate sale, 399.
but not of goods sent by long sea voyage, 399.
nor loss of special contract, 399.
unless by agreement, 399.
damages for loss of season, 22.
reasonable expenses may be recovered, 39, 399.
incurred in searching for the goods, 399.
the delay must be the proximate cause of the injury, 400.
otherwise damage is too remote, 400.
penalty in charter-party, 400.
more or less than penalty may be recovered, 400.
for loss or injury to goods, 400-412.
no difference that there is some third party liable, 400.
where vessel has been lost, 401.
where cargo has been delivered to a wrong person at its place of destina-
tion, 401.
"68 Inpex to Text.

CARRIERS — Continued.
where goods have been sold for repairs of ship, 401, 472.
which has never reached its destination, 408, 473.
where plaintiff has only a limited interest in goods, 401.
where there is no evidence of value, 401.
obligation on ship-owner to protect goods, 402.
undue preference by railway company to one customer over another, 403.-
liability of ship-owners for loss caused by pilot, 403.
or by fire or robbery, 403.
limited as to liability for loss of life or persona: injury, to£15 per tom
of ship’s tonnage, 404.
as to damage to goods, to £8 per ton, 404.
costs beyond this amount may be recovered, 405.
when value of goods must be stated, 406.
foreign shipment, 406.
act does not apply to inland navigation, 406.
liability of land carriers at common law, 407.
effect of notice by them, 407.
Carriers’ Act, 407.
cases to which act does not apply, 408.
felony by a servant, 409.
gross negligence, 409.
special contract, 409. ; .
by railway or canal company, must be reasonable, 410.
and sigrted by party to be bound, 410,
cattle, limitation as to value of, 410.
loss, what amounts to, 410.
value must be declared, 412.
fraud in concealing, 412.
where contract is to carry a particular sort of goods, 412.
what is passengers’ luggage, 413, n. |
telegraphic messages, negligence in transmitting, 413, n.
See Contract; Damaazs.

CHANCERY DIVISION, damages in suits for injunction or specific per-
formance, 758.

provisions of 21 and 22 Vict., c. 27, 758.
payment into court, 758.
new trial, 758.
discretion of court to award damages, 759.
pill for damages only not entertained, 759.
what damages recoverable, 760
special damage must be shown, 760.
damages under general prayer for relief, 760.
future practice, ‘760.

CHARACTER, evidence of, in aggravation or mitigation of damages, 588, 649,
655, 662, 667.

CHARTER-PARTY. See Carriers.

CHARTERS, damages in trover and detinue for, 497, 513.

CIRCUITY OF ACTION, pleas in avoidance of, 190, 374.

COLLISION, damage for, 155, 516, 522.
COMMISSION AGENT, damages against, for purchasing inferior goods, 700.
COMMON, actions for injury to right of. See Easrments. ,

COMPANY. See Pusiic Company.
Inpex to Trex. 769

COMPENSATION, under Lands Clauses Act, 550.

‘COMPROMISE, party indemnified is entitled to, 425.
effect of notice to surety, 425.

CONSIDERATION, absence of, in a bill or note, 347.
failure of, 348.

CON SPIRACY, damages, when too remote, 91.

CONTRACT, damages for breach of, must be the primary and natural result
unless ulterior consequences were contemplated, 17.
rules laid down in Hadley v. Baxendale, 17.
first rule, damages arising in the natural course of things are recoverable,
2

value of articles dependent on season, 22.
damages for loss, of season, 23.
fall in market price of goods, 24.
selling value the test of depreciation, 26.
same rule in America, 26.
held not to apply to carriers by sea, 27, 399.
damages where goods cannot be replaced, 28.
expenses from breach of contract, 29.
special damage from non-payment of money, 30.
damages are ‘recoverable for inconvenience caused by breach, 31.
damages from breach of warranty, 32.
second rule, damages not arising in the natural course of things, but arising
from the special circumstances, are not recoverable unless these
circumstances were known to the defendant, 33.
cases of special loss not known to the defendant, 34.
tule suggested as to notice pending performance, 36-7.
meaning of market value, 37.
different results contemplated by each party, 37.
damages not contemplated by the defendant, 39.
expenses incurred by delay of goods, 39.
loss of special contract not recoverable, 40.
non-delivery of telegrams, 40.
third supposed rule, that damages arising from special circumstances which
were communicated to the defendant are recoverable, 41.
it is doubtful whether liability arises from mere communication of
special circumstances, 41.
in the absence of a contract to undertake liability, 44.
case of common carrier, 42.
authorities that responsibility is not enlarged by special knowledge
only, 42, 43.
rules suggested in place of third rule supposed to have been laid down in
Hadley v. Baxendale, 49.
new principle suggested in Fletcher v. Tayleur, 51.
motive not aground of, 52, 53.
except in case of breach of promise to marry, 52.
to pay money, damages limited to principal and interest, 14.
. but special damage has been allowed on breach of special contract, 30.
right to rescind, 301, 317, 318.
See Damages; Dzst.

CONTRIBUTION. See Suretysuir, 430.

CONTRIBUTORY NEGLIGENCE, in cases of injury, 94 e¢ seg.
children may be guilty of, 101.
of plaintiff's servant, 103.
of person in charge of public conveyance, 103.

97
770 Inpex to Text.

CONTRIBUTORY wrongful act of third party. See Tarrp Parry.

CORN OR HAY, irregularity in distraining, 532.
excessive distress | in taking, 582.
landlord not bound to take in preference to goods which are conditionally
exempt. See InnmGan Distress, 530-540.

COSTS OF ACTIONS, not recoverable, if refused in the original court, 119,
275, 560.
otherwise if not adjudicated upon at all, 120.
not allowed when incurred unnecessarily, 120, 122, '702.
or where former action not sustainable, 128.
unless the contest was reasonable, "125.
or was sanctioned by the defendant, 131.
case of false assertion of authority by agent, 128, 129.
damages include costs, 128.
so where defendant’s conduct exposes plaintiff to action, 129.
case of tenant holding over, 130.
case of warranty and resale, 181.
nor when they were caused by the wrongful act of the plaintiff, 132.
case of underlessee with covenants, 182.
may be recovered where there has been an indemnity, 126, 133.
but only in case of rightful claims, 421.
unless indemnity be against acts of particular persons, 422.
extra costs not a ground of legal damage, 561.
and cannot be recovered, 120, 561.
unless where they cannot be taxed, 121, 552.
or where there is an indemnity, 126, 133.
sed qucere de hoc, 422.
cannot be recovered against sheriff, 609.
where the former action was against plaintiff and another, costs severed,
184.
in action by surety against co-surety, 431.
in action against carrier for not taking cargo, 396.
in action by lessee against under-lessee, 424.

CO-SURETY. See Surerysurr.
COURT. See AmenpMENT; New TRIAL.

COVENANT, for title and authority to convey, 284.
when something has passed, damages are the difference, 284.
when nothing has passed, the purchase-money, 285.
or the amount paid to perfect the title, 286.
for quiet enjoyment, not broken till disturbance, 289.
damages, value of unexpired term and damages of former action, 289.
or amount paid for compromise, 289.
whether rise in value may be allowed for, 290.
or improvements, 288, n., 290.
increase of natural value, 290.
outlay of capital, 290.
where there has been an eviction from part of the land, 291.
deed is conclusive as to amount of purchase-money, 292.
for further assurance, 294.
against or to pay off ‘incumbrances, 294.
difference between law in England and America, 295.
where there is a contingent incumbrance, 295.
nominal damages when actual and contingent loss negatived, 296.
to renew, damages depend partly on value of land and partly on title of.
lessor, 296.
implied, that house is fit for habitation when let furnished, 296.
Inprx to Txt. V7

COVENANT — Continued.
to repair, liability of executors upon, 688.
tenant may be sued for breach of, during term, 362.
damages are measured by the injury to the reversion, 362.
or cost of repairs when done by the landlord, 864.
though not assented to by tenant, 364.
and though plaintiff has since assigned, 364.
nominal fdr disrepair before execution of lease, 365.
assignee only liable for breaches during his own time, 365.
but burden of proof lies upon him, 365.
strict proof of disrepair necessary, 365.
damages, when action brought at the end of term, are the amount neces-
sary to put premises into repair, 365.
not limited to amount of insurance, if burnt down, 366.
tenant is not bound to repair premises subsequently erected without ex-
. press covenant, 366.
no answer that plaintiff's interest has ceased, 366.
sub-lessee only liable for injury caused by his own breach of covenant, 366.
to keep in repair involves a covenant to put in repair, 367.
amount of repair depends on age and class of premises, 367.
how far evidence of previous disrepair admissible, 368.
effect of doctrine upon assignees, .369.
expenses of survey generally borne by landlord, 369.
when liable for repairs of party-wall, 369.
effect of condition precedent that landlord shall put in repair, 370.
damage where two counts, 370.
when action is by tenant against landlord, 370.
costs of another house cannot be recovered, 370.
unless there has been delay on defendant’s part, 370.
injury to one part of premises from non-repair of others, 371.
damages may be referred to the master, 716.
to build, damages measured by real injury sustained, 381.
to mine, 372. ;
to pay renewal fine, must be commensurate with defendant’s interest, 373.
to insure, premiums may be recovered, 378.
where no loss has occurred, 373.
where a loss has occurred, damages measured by it, 375.
where policy is assigned to the insurers to secure loan, the damage is
the loss of the security, 376.
where defendant’s act has caused a forfeiture of the policy, 377.
to pay rates, 377.
to deliver up possession, 378.
not to assign, 379.
to pay rent. See Rent.
in case of alternative covenants, nominal damages only on one, if money
has been paid on the ether, 378.
assessing damages upon penalty for breach of covenants, under 8 & 9 W.
Til, ch. 11, 333.
to what cases statute extends, 337.
where it does not, 387.
crowd not bound by it, 338.
to indemnify, or do some act, damages for breach of, 421.
general covenant only extends to lawful acts, 422.
otherwise when an individual is specified, 423.
when executor may sue for breach of, 672.
See UNDER-LESSEE.

CROPS, distress of growing. See Intecau Distress.

CUSTOMS ACTS, damages for seizure of goods under, 502.
bona fide detention of goods under, not a trespass, 536.
W72 Inpex to Text.

DAMAGES are recoverable in all personal and mixed actions, 2.
and for suing after a prohibition, 4. ; .
and in debt for a penalty given by statute to the party grieved, if the
amount is certain, 3.
but not where amount uncertain, or in action by informer, 3.
not recoverable in real actions, 2.
nor upon an indictment or information, 3.
but an informer may have a third part of the fine, 3.
nominal, meaning of, 6.
plaintiff entitled to, though the injury cause no loss, 6.
unless damage is of the essence of the action, 13.
for detention of a debt, 330.
cannot be sued for when debt has been paid before action, 331.
otherwise when payment is made after action brought, 331, 333.
_ unless accepted in bar of damages, 331.
on a writ of inquiry, 717.
not necessarily nominal; though no proof of actual loss, 12, 626, 719.
not a complete compensation, 14.
for non-payment of money limited to principal and interest, 14.
for breach of contract, must be the primary and natural result, 14.
unless ulterior consequence were contemplated by both parties, 15.
rules laid down in Hadley v. Baxendale, 17, 20.
first rule, damages arising in the natural course of things are recoverable,
21

value of articles dependent on season, 22.
damages for loss of season, 23.
fall in market price of goods, 24.
selling value the test of depreciation, 26.
same rule in America, 26.
held not to apply to carriers by sea, 27.
damages where goods cannot be replaced, 28.
expenses from breach of contract, 29.
special damages from non-payment of money, 30.
damages are recoverable for inconvenience caused by breach, 31.
damages from breach of warranty, 82.
second rule, damages not arising in the natural course of things, but aris-
ing from the special circumstances, are not recoverable unless these
circumstances were known to the defendant, 33.
cases of special loss not known to the defendant, 34.
rule suggested as to notice pending performance, 37.
meaning of market value, 37.
different results contemplated by each party, 37.
damages not contemplated by the defendant, 39.
expenses incurred by delay of goods, 39.
loss of special contract not recoverable, 40.
non-delivery of telegrams, 40. e
third supposed rule, that damages arising from special circumstances
which were communicated to the defendant are recoverable, 41.
it is doubtful whether liability arises from mere communication of
special circumstances, 41.
in the absence of a contract to undertake liability, 41.
case of common carrier, 42. :
authorities that responsibility is not enlarged by special knowledge
only, 42, 43, 45.
rules suggested in i of third rule supposed to have been laid down in
Hadley v. Baxendale, 49.
new principle suggested in Fletcher ». Tayleur, 51.
motive not a ground of, in actions on contract, 52.
in actions of tort governed by looser principles, 56.

\
Inpex to Text. 13

DAMAGES — Continued.
motive a ground of, 57.
unless in actions against several, 57.
or against a principal for the act of his agent, 57.
are a penalty and not merely a compensation, 57, 64.
when too remote, 67, 119.
must be immediate result of act complained of, 68.
application of this rule, 68-81. ~
loss of profits cannot in general be recovered, 81-87, 257, 631.
unless the profit was itself the thing contracted for, 81-87.
Scotch law different in this respect, 87.
when the injury is not the natural result of the act, 88.
wher caused by the act of the plaintiff himself, 94.
effect of his negligence in cases of injury, 94-103.
or that of his servant or driver, 103.
premature expenses, incurred while contract incomplete, 106.
when the wrongful act of a third party, which could not have been
expected, 110-112, 633. :
otherwise when such was the natural result of the wrong done, 106.
repetition of slander by third parties, 112. wigia
cases where a wrong to A. is an injury to B., 116.
costs of former actions, 117-136. «se eee eee
not recoverable, if refused or limited, in the original court, 117.
otherwise if not adjudicated upon at all, 119.
or where they could not be taxed, 121.
and where there is an indemnity, 126.
not allowed when incurred unnecessarily, 119.
or where former action not sustainable, 123.
unless the contest was reasonable, 124.
or was sanctioned by the defendant, 131. i
case of false assertion of authority by agent, 77, 127
damages include costs, 127, ww. seen ee ee
so where defendant’s conduct exposes plaintiff to action, 128.
ease of tenant holding over, 129.
case of warranty and resale, 129.
nor when they were caused by the wrongful act of the plaintiff,
180. a

case of underlessee with covenants, 131.
may be recovered where there has been an indemnity, 125, 132.
but only in case of lawful claims, 421.
unless indemnity be against the acts of a particular person,
422.
not necessary to give surety notice of former action, 132.
where former action against plaintiff and another, costs severed, 133,
cannot be given for any thing before cause of action, 135. ,
subsequent to action may be allowed for, when it is the natural result, and
not itself a new cause of action, 135-138.
interest given up to judgment signed, 137.
when evidence of specific subsequent injury allowed, 137.
a legal (not moral) liability to pay money a ground of, 142.
for instance, a judgment recovered, 420.
not recoverable, when not the necessary result of defendant’s’ act,
138.
or a new cause of action, as a continuing nuisance, 139.
if given in such a case, judgment arrested, 724.
evidence in mitigation of, not admissible if it could have been pleaded,
141, 717.
nor for all the purposes of a cross action, 145.
nor when merely res inter alios acta, 153.
74 Inpex to Text.

DAMAGES — Continued.
right of action against a third party, 156.
nor when it would contradict any rule of evidence, 157.
inferiority a ground of reduction in actions for price of goods, 159.
or work and labor, or hire of services, 160.
but not in actions for freight, or an attorney’s bill, 158.
unless no benefit received, 158.
measure of reduction in such cases, 160.
work done, or materials supplied by employer, 159.
injury to, or loss of employer’s goods, 159.
extenuating circumstances, 161, 168. See different titles of actions.
absence of malice, 163.
set-off. See Srr-orr, 166.
cannot exceed amount laid, 198.
if more given, judgment formerly reversed, 730.
double and treble in certain cases, 730.
ascertained by multiplying amount of verdict, 731.
mode of assessing. See JUDGMENT; SEVERAL Counts; SEVERAL DEFEND-
Ants; Writ oF Inquiry.
power of court to increase or abridge, 739, 740.
too small or excessive. See New TRIAL. 4
liquidated, form the ascertained amount of the verdict, 198, 205.
but must be sued for as such, 202.
judge must decide whether a penalty or, 205. 4
will be construed as a penalty, when so stated to be, without controll-
ing words, 205.
or when a larger sum is to be due in default of a smaller, 205.
unless stipulated for in express terms, 210 n.
or where there are several things to be done, the breach of which
can be measured in money, 209.
otherwise when the damages would be uncertain, 210.
or where the event is single and uncertain, 211.
mere use of words “liquidated damages” not decisive, 212.
court inclined to consider sum fixed a penalty, 212.
cannot be given beyond penalty, when sued for as such, 204.
more or less may be given, when action is on contract, 204.
assessing under 8 & 9 W. III, in action for penalty. See Desr.

DANGEROUS goods, damage caused to carrier by, 398.

DEBT, damages for detention, in general nominal, 12, 380.
may be substantial, as on a mortgage deed, 330.
plea bad, unless it professes to answer, 330.
interest, when given, 330.
action for nominal, cannot be commenced after payment, 330.
may be carried on, if payment after action, 381, 888.
none when plea of tender found for defendant, 3384.
nor where there has been a release of the action, 338.
and a penal statute, 3.
for a penalty as liquidated damages. See Penauty; Liquipatep Dam-
AGES.
on a bond, assigning breaches under 8 & 9 W. III, ch. 11, 384.
statute compulsory, 335.
same judgment as before, 335. :
different modes of proceeding under statute, 386.
to what cases it extends, 337.
when it does not apply, 338.
not binding upon the crown, 838.
damages limited to amount of penalty and costs, 338.
satisfaction entered on payment, 339.
Inpex to Text. T15

DEBT — Continued.
-when penalty not in a bond, plaintiff need not sue for it, 339.
and may recover more or less, 339.
mode of calculating value of a sum in for eign currency, 339. See INTEREST.

DECEIT. See FraupuLENT MIsREPRESENTATION.

DECK GOODS, contribute to a general average, 469.
not contributed for unless in case of usage, 472.

DEFAMATION, evidence of malice, 614, 624.
other words or writing may be used as, 624.
persisting in the charge, 614.
giving circulation to the libel, 625.
general evidence of good character only allowed to rebut contrary evi-
dence, 624.
evidence of general competency, 624.
malice of one not evidence in action against another, 625.
damages in joint actions, by partners or husband and wife, 625.
circulation of libel, an aggravation of, 625.
specific proof of, unnecessary, 626.
when prospective may be allowed, 626.
specific injury after action, when ‘admissible in proof of, 626.
when general evidence of, may be given, 681.
special damage when necessary, 632.
must be laid with certainty, 632.
must be the natural result of defendant’s act, 112, 632.
and not of the repetition of the slander by others, 112, 634.
unless authorized by defendant, 112.
or uttered to one whose duty it was to report it, 112.
when act of third party a ground of, 634.
mitigation of damages; defendant did not originate the libel, 640.
had cause to believe it, 640.
previous provocation, 640.
general bad character, 648.
justification, 648.
former recovery against another person, no ground for, 653.
apology in newspaper, 653.
action for several slanders, some of which not actionable, 722.

DEFAULT. See Jupement spy DEFAULT.
DEMAND OF INTEREST, what is a sufficient, 233.
DEMURRAGE. See Detention or SxHrp; CARRIERS.

DEMURRER, assessing damages after judgment on, 720.
new procedure, 720.

DEPOSIT, on contract to purchase land, interest on, 226.
forfeiture of, 283.

DETENTION OF CHATTEL, damages for, 509.

DETENTION OF SHIP, damages for, 510.
demurrage clause, 516. See CARRIERS.

DETINUE, judgment in, 513.
statutory power to order delivery of chattel, 513.
jury ought to find value separately, 513, 723.
postea sometimes amended, 735.
damages when property cannot be returned, 513.
in actions for charters or scrip, 518.
plea of acceptance of goods since action, 513.
effect of judgment in altering property, 514.
against garnishee, greater damages than those claimed against defendant,
"198.
776 Inpex to TExt.

DEVASTAVIT, effect of, upon the liability of an executor, 513,
difference between doctrines of law and equity, as to, 513.

DEVIATION from. contract for work, 299.

DILAPIDATIONS, liability of executor of deceased incumbent for, 682.
DISMISSAL from service. See Hrrive.

DISTRESS. See ILuEcan Distress.

DIVIDEND must be apportioned to whole debt, where part is guaranteed, 417.
DIVORCE. See ADULTERY.

DOWER, no damages on writ of right of, 478.
are recoverable in dower unde nihil habet, 479.
demand is necessary, 479.
mode of assessing their amount, 480.
time to which they are assessed, 480.
effect of death of heir or widow, 481.
only six years’ arrears or damages recoverable, 482.

DRAWER, liability of. See Bruzs,
DRIVING distress into another county, action for, 534.

EASEMENTS, nominal damages where right has been infringed, though no
loss, 556. .
unless right is a matter publict juris, 557.
particular but not special damage necessary, 557.
actions by reversioners must show injury, 558.
against the lord for putting cattle upon common, 558.
continued obstruction may be sued for continually, 558.

EJECTMENT, changes in its character, 477.
judgment in, 477.
when mesne profits may be recovered, 478.
See Musnr Prorits, 551-555.
costs of, may, be recovered in action for mesne profits, 552.

ENDORSER, liability of. See Brus.

ENTRY, when necessary to maintain trespass, 551.
when made, relates back to origin of title, 551.
unless where party in possession was not a trespasser tillentry, 551.

EQUITABLE set-off. See Smt-orr, 183-190.
doctrine of devastavit, 689.

EQUITY. See Cuancery.

ESCAPE, action of debt, for, abolished, 606.
damages in action on the case for, 606.

EVICTION. See Covenants ror TITLE.
by landlord bars an action for rent, .292, 357.
by title paramount causes an apportionment, 292, 357.

EXCESSIVE DAMAGES. See New Triat.
EXCESSIVE DISTRESS. See Inuzaat Distruss.

EXECUTION against goods, whether it will support a count for money paid
by surety, 428.
InpDEx TO ape VT

EXECUTORS, actions by, 671, 679.
must be brought in respect of some wrong affecting the personal estate,
671
not necessary to prove actual damage, 672.
unless in actions of real covenants, 672.
when they cannot sue, 673.
measure of damages, 673.
right to sue for trespass to goods, 673.
or to lands, 673.
or for injury causing death, 674.
no damages for mental suffering, 674.
nor for funeral expenses, mourning, 678.
but for loss of expectations, 678.
principles on which pecuniary loss to be calculated, 677.
deduction on account of insurance, 679.
action only when deceased might have sued, 678.
therefore barred by accord and satisfaction with deceased in
his life-time, 678.
extends to death on high seas, 406, n.
but no action can be brought till Board of Trade has held
an inquiry, or refused to do so, 406, n.
set-off in actions by, 177.
actions against, 681-691.
when sued as such, are liable to extent of assets, 681.
contracts of the testator in general survive against, 681.
unless in matters of personal skill, 683.
revocation of authority by death, 682.
trespass may be maintained against, 683.
but vindictive damages cannot be recovered, 683.
liability of, for dilapidations, 684.
what contracts made by, bind him in his representative character, 685.
when liable personally, 685.
trading; submission to arbitration, 686.
funeral expenses, 687.
use and occupation, 687.
rent due since testator's death, 688.
where term has been assigned, 689.
mode of estimating profits from land, 689.
covenant to repair, 690.
devastavit at law and in equity, 691.
‘want of assets should be pleaded, 690,
effect of judgment against, de Lonis testatoris, 692.
de bonis proprite, 693.
set-off in actions against, 178.
payments made by executors, de son tort, go in mitigation of damages, 162.
sued in replevin, may recover damages, 528.
can sue or be sued for mesne profits, 554.

EXEMPLARY DAMAGES, may sometimes be given, 61, 745-756.
See Motive.
actions for mesne profits, 554.

EXTORTION, treble damages in action against sheriff for, 608.
form of declaration, 609.

EXTRAS, how sued for, 298.
original contract must be put in stamped, 298.

FACTOR, set-off in actions by or against, 182.
98
478 Inpex To Text.

FALSE IMPRISONMENT, probable cause a ground of mitigation, 163, 722,
but if amounting to a justification, must be pleaded, 590.
remand by the magistrate not a ground of damages, 590.
nor circumstances of subsequent prosecution, 590.
damages in action by and against several, 590.
against justices of the peace, 594.
jury will look to all the circumstances, 549.

FENCES, consequential damages from non-repair, 91.
FINE. See Renewat Fine.

FIRE INSURANCE is a contract of indemnity, 441.
sum insured for does not operate as the ascertained value, 443.
property is to be estimated at its intrinsic value, 446.
at what time the value is to be calculated, 446, 449.
election to reinstate, 442, n. 1.
bailees may insure for full value, 451.
are trustees for residue above their own interests, 451.
insurable interest of tenants from year to year, 451, n. 2.
mortgagees, 451, n. 2.
profits must be expressly insured, 452.
expenses of saving property, 452.
double insurance, 452.
the single value only can be recovered, 452.
except when insurances are in different rights, 452.
contributions between different offices, 452.

FIXTURES, damages in trover for, 495.
in trespass for, 514.
on policy of insurance for movable, 446.

FOREIGN CURRENCY, mode of calculating value of, 339.

FOREIGN JUDGMENT, interest upon, 227.
mode of calculating value of, 339.

FORMER RECOVERY. See Jupement REcovERED.

FRAUDULENT MISREPRESENTATION, damages may be recovered which
result naturally from representation being acted on, 32, 271, 275.
as to animals with infectious disease, 32, 271.
as to land, 275.
case of damages too remote, 91, n. 2.
representations acted on by third person, 116.
or in a way not intended, 117.

FREIGHT, loss or injury to goods not a ground for mitigation of damages in
actions for, 161.
ctions for payment of, 381.
for not supplying, 387.
for not taking, 393.
See Carriers; Marine Insurance; GENERAL AVERAGE.

FUNERAL EXPEN SES, liability of executors for, 685.
FUTURE DAMAGE. See Prospective Damage.

GENERAL AVERAGE. See Avmrace.

GOODS, sold and delivered, no interest recoverable, 227.
unless payment to be made by bill, 227.
InpEx to Text. 9

GOODS — Continued.
when to be paid for by bill which is not given, 228.
inferiority may be given in evidence, 159.
measure of reduction of price, 160.
bargained and sold, where no actual delivery, 238.
action for not accepting, 238.
damages, difference between contract and market price, 238.
in some cases plaintiff may sue before expiration of time fixed for
performance of contract, 239.
vendor cannot re-sell goods, if buyer fail to carry them away, 244.
absolute contract to pay for goods, though not accepted, 246.
action for refusal to deliver, same rule of. damages, 246.
where vendor has renounced contract before day fixed, 246.
where there are distinct times of delivery, 250.
where vendee at vendor’s request forbears buying other goods, 251.
when no time fixed for completion of contract, 251.
postponement of time for performance, 251.
where delivery is by installments, 252. ;
where goods are not procurable in the market, their value must be
otherwise estimated, 254.
loss of profit an element of value, 254.
additional expenses caused by breach, 255.
loss of profits on re-sale, 255.
articles intended not for sale but use, 256.
actions for not replacing stock, 256.
where payment made in advance, 259-263.
by bills which are dishonored, 263.
order for specific delivery under Mercantile Law Amendment Act,
1856, 263.
See WARRANTY. .
sold by master for necessities of ship, 401.
mode of valuing, 401.
lost by carrier, or injured by carrier. See CaRRIER.
mode of valuing. See VaLuE.
whether execution upon,will support acount for money paid bv surety, 428.
See Damacgs.

GUARANTY. See Surerysair.
trover for, 498.

HADLEY vo. BAXENDALE, rules laid down in, 17.
first rule, damages arising in the natural course of things are recoverable,
21

value of articles dependent on season, 22.

damages for loss of season, 23.

fall in market price of goods, 24.

selling value the test of depreciation, 26.

same rule in America, 26.

held not to apply to carriers by sea, 27.

damages when goods cannot be replaced, 28.

expenses from breach of contract, 29.

special damage from non-payment of money, 30.

damages are recoverable for inconvenience caused by breach, 31.

damages from breach of warranty, 32.

second rule, damages not arising in natural course of things, but arising

from the special circumstances, are not recoverable unless these
circumstances were known to the defendant, 33.

cases of special loss not known to the defendant, 34.

rule suggested as to notice pending performance, 37.

meaning of market value, 37.
780 Inpex to TExt.

HADLEY v. BAXENDALE — Continued.

different results contemplated by each party, 37.

damages not contemplated by the defendant, 39.

expenses incurred by delay of goods, 39.

loss of special contract not recoverable, 40.

non-delivery of telegrams, 40.

third supposed rule, that damages arising from special circumstances

which were communicated to the defendant are recoverable, 41.

it is doubtful whether liability arises from mere communication of
special circumstances, 41.

in the absence of a contract to undertake liability, 41.

cases of common carrier, 42.

authorities that responsibility is not enlarged by special knowledge
only, 42, 43, 44. 4

rules suggested in place of third rule supposed to have been laid
down in Hadley v. Baxendale, 42.

HIRING, contracts of, 303 et seq.
nothing recoverable upon a special contract which has not been per-
formed, 303. .
nor upon a guantum meruit, unless defendant prevented performance,
303.

nor where dismissal was for misconduct, 305.
when such dismissal a good defense, 305, notes.
contract to pay for service is not a contract to employ, 805.
unless word ‘‘ agreed” is used, 313.
intention of the parties, 313.
effect of word ‘‘ agreed,” 313.
where service is a mode of paying a debt, 314.
where covenants to pay and serve are independent, 314.
Churchward v. The Queen, 315.
agreement to supply work not always implied, 316.
agreement to pay a yearly salary is a yearly hiring, 316.
when action for dismissal may be brought, 317.
damages in it; include past service, 317, 327.
contract cannot be treated as subsisting for any purpose but that of
suing, 317.
right of action passes to trustee in bankruptcy, 327.
plaintiff, improperly dismissed, may sue at once on a quantum meruit,
327.

inferiority of services may be given in evidence, 327.

doctrine of constructive service for whole period overruled, 327.
month’s notice in case of menial servants, 328.

who are such, 328.

damages in action for not giving notice do not include past service,

328.

salary now within statute of apportionment, 328.

See Work AND Lazor, 298-303.

HOLDING OVER after giving notice to quit, 360.
receiving notice to quit, 360. See Renr.

HUSBAND AND WIFE, set-off in actions by and against, 178.
no special damage on joint count for libel in action by, 625.
separate count for injury to husband may be added, 626.

ILLEGAL DISTRESS, 529-538.
irregularity in distress for rent; action must be for actual damage, 529.
excessive distress, 530.
mode of calculating value, 5382.
Inprex to Text. 781

ILLEGAL DISTRESS — Continued.
no damages for sale unless alleged, 532,
when trespass will lie for, 531.
distraining for more rent than is due, 532.
where nothing is due, 541.
‘irregularity in distraining corn, hay, or growing crops, 582.
effect of tender, 533.
selling without appraisement, 534.
not removing goods; not giving notice; not selling at best price, 540.
driving cattle out of county, 540.
when distress is void ad initio, 541.
tender before or after distress; after impounding, 541-2.
mere non-feasance not sufficient, 542.
distress may be void as to part only, 542.
distraining privileged articles, 543.
where only other distress consists of growing crops, 543.

IMPROVEMENTS, a ground of damage in action on a warranty, 270.
on covenant for title, 290.
whether value of, can be recovered in trover, 493-497.
not allowed for in action for mesne profits, 553.

INCONVENIENCE, through breach of contract, damages for, 31.
INCUMBRANCES. See Covenant aGainst INCUMBRANCES.

INDEMNITY, recovery of costs under, 126, 133.
given by plaintiff to defendant against the demand sued on may bar the
action or reduce the damages, 162.
against calls on shares, vendor’s right to, 246, x. 1.
See SuRETYSHIP,

INDICTMENT, no damages recoverable on, 3.
when given by statute must be sued for, 3.
informer may upon conviction obtain a third fine, 3.

INFERIORITY a ground for mitigation of damages, 160.
measure of reduction, 160.
not in actions for freight, or on an attorney’s bill, 158.

INFORMER, damages not recoverable by, 3.

INJUNCTION, damages in addition to, or substitution for, 758.
though case for injunction fails, 759.
for infringement of patent, 759. ‘
though patent have expired pending the suit, 759.
unless bill filed too late for any equitable relief, 759.
See Cuancery Division.

INSURANCE of ship not a ground for reducing damages in action for collis-
ion, 153.
nor of goods in action for injury by collision, 521.
of deceased’s life must be deducted in action by executors for injury caus-
ing death, 677.
See Finz, Lirz anp Marine InsuRANCE; INTEREST.

INSURE, covenant to; premiums may be recovered, 3874.
where no loss has occurred, 875.
where a loss has occurred, 876.
where policy is assigned to the insurer to secure loan the damage is the
loss of the security, 377.
covenant not to cause forfeiture of policy, 378.
482 Inpex to Text.

INTEREST. I, at common law, when given, 214.
always on bills and notes, 216, 842.
may be withheld unless expressly reserved, 342. _
not given while note in hands of alien enemy, 342.
where expressly reserved, runs from date, 342.
though no action could have been originally maintained, 343.
if note given as a legacy, would run from maker’s death, 3438.
where not reserved, runs from maturity, 343.
or from demand, when instrument payable on demand, 343.
liability of drawer, indorser, or guarantor for, 843.
when note payable by installments, 344.
does not run after a tender, 229, 344.
payment into court must include, 344,
cannot be recovered from maturity of bill without its production, 344.
calculated at current rate of place whose laws govern payment, 345.
lea loci solutionis is the lex loci contractus, 345.
hence different liabilities of acceptor, drawer, and indorser, 345.
where expressly reserved, governed by lex loci contractus, 280, 846.
in trover for a bill, 490, 497.
contract of indemnity does not imply interest on money paid, 214.
course of dealing raises a contract to pay even compound, 221.
but not upon the last balance, 223.
agreement to pay by bill or note raises a contract for, 223.
fact of such agreement is a question for the jury, 223.
bond with a penalty carriés, 224.
but not when parties only bound in the amount due, 224.
given on an award payable on a certain day, 224.
not recoverable in action for recovery of deposit, 226.
except as damages, 226.
nor even then in action against the auctioneer, 227.
nor for money lent, paid, had and received, or on account stated, 227.
nor for goods sold, work and labor, or policy of insurance, 227.
nor on foreign judgment, where plaintiff has been guilty of laches, 228.
nor in action for money secured on mortgage, 228.
or for money payable on a fixed day, 228.
or upon a contract to indemnify, 219.
except as damages, 226.
does not run after a tender, 229.
calculated up to time of payment into court, 230.
or judgment signed, 2380.
recovered at law always £5 per cent, 230.
II, by statute, 232.
in trespass, 232.
trover, 232.
on policies of insurance, 228, 230, 468.
what sums considered certain, 232.
what is a sufficient demand, 233.
case of application for loan until a day named, 233.
notice of action, when necessary, must demand interest, 284.
jury cannot be controlled in their discretion, 284.
can only be given by jury, 235.
on judgments, 235.
time from which it is calculated, 285.°
on writ of error, 285.
might be given by House of Lords, 236.
in action for breach of covenant for title, 285, 287.
on purchase-money of land under condition of sale, 275, n. 1.
beyond penalty where express agreement, 840.
Inprex to Text. 788

INTERPLEADER, creditor only responsible in trespass up to time of ordet,
516.
therefore not responsible for the sale under the order, 516.

INTERROGATORIES as to damages, when allowed, 714.

JOINT ACTIONS, principle of damages in, 590, 724.
cannot be assessed severally, 594:
effect of default by one defendant. See Jupam=nt sy Deravut, 728.

JOINT AND SEVERAL bond, or note, when it may be set off, 177.
debts, when they may be set off against each other, 175, 189.
when they cannot, 175.

JUDGE must decide whether a fixed sum is a penalty or liquidated damages,
205.

must direct as to the place by whose laws interest is to be regulated, 344.
as to the measure of damages, 734.

effect of a wrong.ruling by, as to right to begin, 734.
amendment of postea by, 735.

his decision final, 735.

application made to him in full court, 735.

power to court to amend if he has left bench, 735.
no amendment from recollection, 735.
See AMENDMENT.

in case of excessive verdict will suggest to counsel to agree on a sum, 749.

JUDGMENT ARRESTED:
formerly in case of misjoinder of good counts, 724.
unless verdict for defendant, or nolle prosequi on counts improperly
joined, 724.
where damages are given for matter subsequent to action brought, or pre-
vious to right of action, 724.
new procedure, 724.

JUDGMENT BY CONFESSION, express or implied, 715.
when execution may issue for the amount at once, 716.
or on default in payment of an installment, 716.
when necessary to lave a reference to the Master, 716.
or a writ of inquiry. See Writ or Inquiry.

JUDGMENT ON DEMURRER, assessing damages on, 720.

JUDGMENT BY DEFAULT, admits the cause of action alleged, 719.
but not the amount unless put in issue, 719.
where the writ has been specially indorsed, 719.
where it has not been, 719.
is final in case of a liquidated demand for money, 719.
when a reference to the Master may be had, 717.
when necessary to sue out writ of inquiry, 717.
evidence upon writ of inquiry, 717.
on one of several counts, on which plaintiff may recover all he claims, 720.

JUDGMENT REVERSED where entire damages against all, and some only
guilty of part, 724, 725,
new procedure, 725.
where damages assessed severally instead of jointly, 725.
where greater damages are given than are laid, 729.

JUDGMENT RECOVERED is a damnification to its full amount, 124, 420.
a bar to a second action in trover, or trespass, 509, 512.
or in detinue, 513.
784 InvEex to TExt.

JUDGMENT RECOVERED — Continued.
or for negligence, 611.
or slander, 626.
not a bar to an action for a nuisance, or continuing trespass to land, 137.
or obstruction to an easement, 558.
in action for imprisonment, no bar to action for malicious prosecution, 590. .
against one adulterer no bar to action against another, 669.
against insurers, no bar to action for a collision, 153.
against one slanderer, no bar to action against another, 649.

JUDGMENT was the subject of set-off, though writ of error pending, 168.
and though prejudicing the attorney's lien, 172.
but not a verdict before judgment, 166.
nor when satisfied by execution, 166.
. would not be stayed to let in a judgment on a cross action, 166.
when considered to be signed, 229.
interest upon, 234.
in trover, effect of, in changing property, 512.
and in detinue, 513.
form of, against an executor, 690.
its effect, 690.
may be maintained as to part, and reversed as to damages, 756.
See ForErian JUDGMENT.

JURISDICTION, seizing goods out of, 525.
arresting out of, 564.

JURY may withhold interest, 233, 342.
amount is at their discretion, 233, 344.
summoned by sheriff to ascertain property, 526.
effect of their verdict, 526.
must assess value of goods in detinue separately, 513, 722.
must assess value of rent and distress in replevin, 529.
amendment of postea formerly in accordance with intention of, 787.
judge must direct as to measure of damage, 734.
and as to the place whose laws govern the rate of interest, 344.
mistake or misconduct of, a ground for a new trial, 743, 744.

JUSTICE OF THE PEACE, damages in action against, 594.

JUSTIFICATION; an unsuccessful plea is an aggravation of damages, 564.
evidence which amounts to, cannot be given in mitigation of damages,
590, 648.
no evidence that plaintiff had submitted to same imputations before, 648.

KEEP of an animal not « ground of mitigation of damages in trover, 504,
may be recovered in action on a warranty, 266.

LAND, sales of, 274-280.

action for breach of contract to convey, 274.
vendee may recover deposit with interest as damages, 275.
and expenses of investigating title, 275.
but not expenses prematurely incurred, 276.

unless in case of misrepresentation, 276.

nor costs of suit for specific performance, 276.
nor profits from a re-sale, etc., 276,
nor value of improvements made, 276.
nor loss incurred by selling out stock, 277,
nor damages incurred after knowledge of defective title, 277.
nor damages for loss of bargain, 277.
Inpex to Text. 785

LAND — Continued.
reason for this exception from general rule, 278.
Bain v. Fothergill, 277.
damages where failure is not from want of title, 278.
the ordinary rule of common law prevails, 278.
and special damage may be recovered, 278.
refusal to make title, 279.
express agreement to convey notwithstanding defect of title, 280.
price of re-sale evidence of market value, 281.
when damages are allowed in suit for specific performance, 282, 758, 760.
where contract void ab initio, deposit may be recovered, 275.
and a moiety of auction duty, 278.
but neither interest nor expenses of investigating title, 275.
contract may be rescinded for defect of title, 275, 282.
and purchaser need not accept doubtful title, even with an indem-
nity, 282. :
but if let into possession, cannot rescind, 282.
nor can he retain part, and abandon part of same purchase, 276.
at an auction, each lot a distinct sale, 276.
damages liquidated by consent, 281.
damages for not accepting conveyance are the injury plaintiff has sus-
tained, 282.
usual conditions of sale, 283.
forfeiture of deposit, 284.
_ interest on purchase-money, 275, n. 1.
See Covenants For Titue; Rent; Covenants To Reparr; CovE-
nants To Bump anpD Mine; Trespass; Easements; MEsne
PRoFITs. ‘

LANDLORD AND TENANT. See Rent; Covenant; SuRETysHir; UNDER-
Lessee; Hotprina OveR; Use anp Occupation. :

LIABILITY to pay money is a good ground of damage, 143.
unless it is only a moral, not legal, obligation, 143.

LIBEL. See Deramartion.

LIFE INSURANCE, full amount with inéerest may be recovered, 440.
measure of damages on an insurance against accidents, 441.
covenant not to cause forfeiture of policy, 378.

LIGHTS, actions for injury to." See HasemMEnts.
LIMIT of damages, the amount claimed. See Damaass.
LIQUIDATED DAMAGES. See Damaczs; PENnatry.

LOSS of freight, goods, or ship. See CaRRIERS; GENERAL AVERAGE; MARINE
INSURANCE.

MALICE. See Morrve.
MALICIOUS ARREST. See Fautse Imprisonment, 590.

MALICIOUS PROSECUTION; damage must be shown, 559.
liability to pay extra costs is not damage, 561.
nor can they be recovered, if paid, 562.
malice and want of probable cause, 562-563.
evidence of bad character of plaintiff, 562-564.
not barred by recovery in action for false imprisonment, 590.

MANNER of committing an act may aggravate damages, 56, 517, 747. See
Mortve.
99
786 Inpex to Text.

MARINE INSURANCE:
when loss is total without abandonment, 455.
constructive total loss in case of the ship, 455, 456.
in case of cargo or freight, 456.
delay of voyage, 457.
notice of abandonment must be given, 458.
otherwise only average loss, 458.
election to treat at a partial loss precludes abandonment, 459.
where the insurance is free of particular average, 459.
it is immaterial whether goods were packed in separate parcels, 460.
and the ordinary memorandum protects underwriters, 460.
total loss may become partial by matter subsequent, 460.
even where notice of abandonment has been given and accepted, 462,
value may be agreed on beforehand, as liquidated damages, 462.
mode of valuing goods or freight, in an open policy, when loss is total, 462,
insurer is entitled to benefit of salvage, 464.
mode of valuing partial loss in case of ship, 464.
deduction on account of new for old materials, 465.
in case of goods or freight, 465, 466.
charges incurred for preservation of vessel, cargo, or freight, 467.
for provisions and wages in case of embargo, 470.
liability of insurers in respect of a general average loss, 470.
how far bound by adjustment in a foreign port, 470.
interest on policy, 471.
See GENERAL AVERAGE, 227, 471-476.

MARKET VALUH, meaning of, 37.
where land is re-sold by vendor the price is prima facie evidence of the
market value in estimating loss of first vendee, 281.

MARRIAGE. See Breacu of PRomIsE.

MASTER; cases in which a reference will be allowed in place of writ of
inquiry, 716.

MASTER AND SERVANT. See Hrrrne.

MESNE PROFITS, against whom action will lie, 551.

damages when limited to time of actual possession, 551.
recoverable for entire period over which title extends, 551.
unless occupant is not a trespasser till entry, 552.
effect of judgment in ejectment on right to, 552.
not confined to mere rent of premises, 552.
nominal, unless duration of defendant’s pussession is proved, 553.
costs of previous ejectment, 553.

mitigation of damages; payments, improvements, 554.

a remittitur damna in ejectment, no bar to action for, 555.

when recoverable in ejectment, 555.
effect of such recovery, 555.

actions by and against executors, 555.

MINE, action on covenant to, 372.
for rent of, 353.
for taking minerals from, 545, 546.
for injury to, 547.

MISJOINDER OF COUNTS. See SrvERAL Counrs.

MITIGATION OF DAMAGES, evidence not admissible if it could have been
pleaded, 145, 502, 590, 648, 717.
nor for all the purposes of a cross action, 52, 145.
Inpex to Text. 187

MITIGATION OF DAMAGES — Continued.”

nor when merely res inter alios acta, 153.
See JUDGMENT RECOVERED. °
right of action against a third party, 156.

inferiority of goods or work, 159.
not admissible in actions for freight, or on an attorney’s bill, 158.
unless no benefit has been obtained, 158.
measure of reduction in such cases, 160.

work done or materials supplied by the employer, 159.

injury to or loss of employer’s goods, 160.

imperfect title to goods or lands, 502, 544.

re-delivery of goods or re-payment, 506, 520.

libelous character of property taken, 518.

absence of malice, and bona fides, 161, 163, 562, 564, 640. ‘
See Sepucrion; ADULTERY; BrEeacH oF PROMISE; REDUCTION OF

DamaagEs.

MIXED ACTIONS, damages are recoverable in, 2.
See DowER; EvectMentT; QuaRE Impepit, 481-483.

MONEY, contract to pay, damages limited to principal and interest, 14,
but special damage has been allowed on special contract, 40.
See DaMaGEs. :

MONEY PAID BY SURETY, what amounts to. See Suretysur.

MORAL obligation to pay money, if not a legal one, is not a ground of dam-
age, 143.

MORTGAGE DEED, interest on, 227.
when it will support a count for money paid by surety, 429.

MOTIVE not a ground of damage in case of contracts, 52, 57.
and otherwise in case of torts, 56. See TirLes oF ACTIONS.
but motive of one no ground of damage in action against him and
another, 57, 517, 590, 725.
nor in action against principal for act of his agent, 57, n. 4.
ground of mitigation of damage, 163. See Tires or ACTIONS.
evidence of character in proof of probable cause, 562, 649.

MUTUAL CREDIT IN BANKRUPTCY. See Szr1-orr.

NEGLIGENCE, when the plaintiff may recover, though himself in fault, 94, 101.

when himself a trespasser, 97,

See Contrizsutory Neeiicence; THIRD Party.
in admiralty courts, damages divided when both parties are to blame, 517.
liability of ship-owners for loss caused by, limited, 404, 517.

of carriers by land limited in case of certain articles, 407, 410.
effect of gross negligence at common law, 407.

since the Carriers’ Act, 409.

See CARRIERS.
damages for personal injury caused by, 72, 596.

no reduction in respect of insurance, 600.

where the action is by the executors. See Exscurors, 671.

See Suerrrr, 596, 602-610; ATTORNEY.
goes in mitigation of damages in action of seduction, 662.

or of adultery, 667.

NEWSPAPER, apology for libel in, 650.
788 Inpex To Text.

NEW TRIAL has taken the place of an attaint, 743, 745.
and of the old jurisdiction to increase or abridge damages, 789. .
can now be granted for purpose of assessing damages without interfering
with other findings, 733.
in what cases allowed, 742.
not allowed, where damages are unliquidated, on ground of smallness, 743.
unless in case of misdirection or miscalculation, 743.
or misconduct of the jury, 743.
allowed, for smallness, where there is a measure of damages, 744.
not where plaintiff has allowed damages to be assessed contingently,
745. a;
when allowed on the ground of damages being excessive, 746.
examples of cases in which refused, 746-749, n 8.
t in which granted, 749. See also n. 8.
not granted when verdict is under 20/., 756.
unless perverse, or on a matter of permanent right, 756-7.
or in cases tried before an inferior court, 756--7.

NOLLE PROSEQUI, formerly upon counts improperly joined, 724.
against some where damages formerly assessed severally, 728.
against defendants who pleaded matter of personal discharge, 728.
against those who pleaded in tort, where some made default, 728.

NOMINAL DAMAGES must be given wherever there is a right of action,
though no loss is proved, 5.
but not where damage is of the essence of the action, 10, 11, 473, 478,
558, 605, 609, 613, 701, 708.
for detention of debt, 330.
cannot be sued for when defendant has been paid for action, 330.
otherwise when payment is made after action brought, 331-332.
unless accepted in bar of damages, 331.
by consent, on re-delivery of chattels, 507.
on a writ of inquiry, 717.

NOTE, undertaking to pay by, carries interest, 218.
breach of agreement to give, 238.
whether it will support count for money paid bysurety, 427.
set-off of joint and several note, 177.
See Bris.

NOTICE, menial servants entitled to one month’s, 328.
who are menials, 328.
damages for dismissing without, 328.
want of, does not make distress void, 584.

NOTING, when recoverable, 350.
NUISANCE, damages for continuing, 141, 142.

PARTNERS, set-off between, 1'75.
interest on money drawn out in excess of share, 229.

PARTY-WALL, liability of tenant for repairs of, 369.

PATENT, infringement of, 82, n. 1, 759. :
measure of damages, the royalty which ought to have been paid, 82, n. 1.

PAYMENT of debt before action, 330.
after action, 146, 331, 838.
into court, 109.
by surety, what amounts to, 427.
of produce of goods wrongfully taken, 520.
InpEx to Text. 789

PAYMENT — Continued.
in advance for goods never delivered, 259-263.
by tenant, when it may be deducted from rent, 861.
by sheriff, when admissible in reduction of damages, 525.
to recover goods wrongfully taken, a ground of damage, 525.
may be deducted in action for mesne profits, 553.

PAYMENT INTO COURT must include interest due, 229, 344.

PENALTY when sued for as such, less may be given, 204.
plaintiff may waive, and recover more by suing for breach of contract,
204, 239.
relieved against in equity, 204.
held to be such when so stated without controlling words, 205.
and when payment of a smaller sum is secured by a greater, 205.
but not necessarily where one sum fixed for breach of several condi-
tions, 209.
in case of doubt, courts incline to view it as a penalty, 213.
no damages in action for, by a common informer, 2. .
otherwise when given to party grieved, if amount certain, 2.
but not when uncertain, as treble damages, 3.
only one can be recovered, in action against several, 3.
provisions of 8 & 9 W. III, c. 2, as to assignment of breaches, 334.
statute compulsory, 335.
' same judgment as before, 335.
different modes of proceeding under statute, 336.
to what cases it extends, 337.
when it does not apply, 338.
not binding upon Crown, 338.
damages limited to amount of and costs, 338.
satisfaction entered on payment, 339.
for non-attendance of witnesses, 614.
must be assessed by court at Westminster, 614. .
in charter-party where not liquidated damages, larger sum may be recov-
ered, 400.

PLEADING. See Breacuss, 334-339.
by executor sued for rent, 686.
without assets, 690.
See Specran Damace, 708-714.

POLICY. See Free, Lire, and Marine Insurance and INTEREST.

POOR RATES, treble damages in replevin for, 529.
writ of inquiry may issue to assess damages if omitted, 731.
irregularity in distraining does not amount to trespass ab initio, 538.

POSSESSION, covenant to deliver up, 378.
POSTAGE on return of inland bill must be specially laid, 350.
POSTEA. See AMENDMENT.

PREMATURE EXPENSE incurred while contract incomplete cannot be re-
covered, 106, 275.

PRINCIPAL AND AGENT:
when principal may sue agent, 697.
agent liable for all loss arising from his neglect, 698.
amount of loss is the measure of damage, 700.
loss must be the necessary and proximate result, 702.
nominal damages though no loss is proved, 703.
action will fail, if all possibility of loss is negatived, 703.
790 Inprex To Text.

PRINCIPAL AND AGENT — Continued.
set-off of debt from agent in action by principal, 181.
of debt from principal in action by agent, 158, 182, 189.
where agent may sue principal, 705.
omission on sales, 705.
revocation of authority, 715.
agent is entitled to an indemnity, 706.
action against one professing to have authority as agent, 128, 483, 438.
rule laid down in Collen v. Wright, 128, 434. :
costs of unsuccessful legal proceedings may be recovered if ‘reasonably
adopted, 128, 129, 433-438. /
motive, not a ground of damage in action against principal for act of his
agent, 57, n. 4, 626.

PRINCIPLES on which damages are given. See Damaaus.
PROBABLE CAUSE, evidence of bad character in support of, 562, 648.

PROFITS in general too remote to be a ground of damages, 82-86, 258, 260,
264.
unless the profit was itself the thing contracted for, 82.
Scotch law different in this respect, 87.
difference between primary and secondary profits, 84.

PROHIBITION, damages for suing in Ecclesiastical Court after, 3.
PROSECUTION. See Maricrous Prosucurion.

PROSPECTIVE DAMAGE may be allowed for when itself natural and not a
new ground of action, 185-140, 546, 611, 626.
a legal (not moral) liability to pay money, a ground of, 142, 419.
when improperly given, judgment arrested, 724.

PROTEST. See Bris, 342.

PUBLIC COMPANY, set-off between companies in winding-up and their
members or contributors, 183.
what a sufficient demand of calls to carry interest, 233.

PURCHASE-MONREY, deed is conclusive as to amount of, 265.
interest on, 275, n. 1.
forfeiture of deposit, 284.

QUANTUM MERUIT, extras must be sued for on a, 298.
work not done according to contract, 301.
or whose completion is Al by defendant, 304.
servant wrongfully dismissed may sue on a, 327.
a bill cannot be accepted upon a, 349.

QUARE IMPEDIT, damages in, given by statute, 481.

value of church, how Soimete 481.

damages after six months where bishop has not collated, 481.
where he has, but incumbent afterward removed, 482.
against whom recoverable, 482.
where there has been no actual loss, 483.

meaning of ‘six months,” 482.

when two years’ value may be recovered, 483.

QUIET ENJOYMENT. See Covenant for Qurer ENJOYMENT.

RAILWAY COMPANY, damages for undue preference by one customer over
another, 404. See CarniErs.
Invex to Text. 491

RATES, covenant to pay, 378.
REAL ACTIONS, no damages recoverable in, 1.

RE-DELIVERY OF CHATTELS,. goes in mitigation of damages, 506.
staying proceedings upon, 508, 514.
statutory power to compel, 514.

REDUCTION of damages after verdict, where matter subsequent has occurred,
508. See Mitigation or DamacEs.

RE-EXCHANGE. See Brus.
REFERENCE to Master in place of writ of inquiry, when allowed, 716.
REGISTRAR of County Court, liability of, in respect of replevin bonds, 602.

REMITTITUR DAMNA in ejectment, no answer to action for mesne profits,
554.

of lesser damages, when assessed severally against several defendants, 717.

REMOTENESS OF DAMAGE. See Damages; Prorits; Costs or Actions;
Conspiracy; FRAUDULENT MISREPRESENTATION.

RENEW, covenant to, damages depend partly on value of land and partly on
title of lessor, 296.

RENEWAL FINE, covenant to pay, 374.

RENT of coal-mines, according to amount raised, 353.
use and occupation, at common law and by statute, 354.
agreement for amount, void by Statute of Frauds, 354.
where defendant has not enjoyed under it, 354.
payment not conclusive as to amount, 354.
value of holding may be increased by extrinsic circumstances, 355.
annual expenses must be deducted, 356.
plaintiff can only recover for period of legal title, 356.
no apportionment, where there has been a surrender or eviction in the
middle of the current period, 357.
nor where lessor has evicted from part of the land, 357.
unless in case of forfeiture or condition for entry, 357. /
nor in case of possession by prior tenant for whole period of lease, 357.
apportionment exists in case of surrender of part of the land, 357.
or eviction by title paramount, 357.
or severance of the reversion, 357.
and by statute rent now accrues from day to day, 358.
apportioned part payable when the entire rent would have been
payable, 359. :
tenant holding over after giving notice to quit, 859.
what notice is sufficient, 359.
holding over after receiving notice to quit, 360.
notice must be in writing, 360.
payments made by tenant, in discharge of landlord, may be deducted, 360.
though landlord might have freed himself from liability, 361.
should be pleaded as payment, 361.
and deducted from the rent next due, 364.
irregularity in distraining for, does not make party trespasser ab initio. See
ILLe@AL Distress.
liability of executor for rent incurred in life of testator, 686.
for rent due since the death, 686.
mode of estimating profits of land, 686.
where term has been assigned, 687.
792 Inprex to Text.

REPAIR, See Covenant; Dmaprparions.
liability of executor on covenant to, 689.

REPLEVIN, damages may be obtained by both parties, 527.
for plaintiff, 527.
defendant cannot obtain at common law, 528.
now given by statute, 528.
must be assessed by the original jury, 529.
effect of their omitting to do so, 529, 732.
where goods distrained for poor rates are replevied, 529.

REPLEVIN BOND, liability of sureties and sheriff in respect of, 602-5.
of registrar of county court, 602.

REVERSIONER, action by, for non-repair. See Covenant.
for injury to land. See Lanp.
to goods, 505.
to easements, 558.

RIGHT OF ACTION, against third parties not a bar, 156, 534.
whether a ground for mitigation of damages, 156, 354.

RIGHT TO BEGIN, when plaintiff proceeds for unascertained damages, 734.

SALARY, now within statute of apportionment, 329.
See Hrarna.

SALE. See Goons; Lanp; SHarzs; Stock; WaRRANTY; Covenant; WoRK
AND LABOR.

SALVAGE, an element in constructive total loss, 455.
what it is; insurer entitled to benefit of it, 463.

SEASON, value of article dependent on season, 21.
damages for loss of, 22.

SEDUCTION, damages are given for example’s sake, 659.
not limited to consequential loss, 657-661.
ought to be governed by situation in life of parties, 657-661.
evidence of promise of marriage, 661.
general evidence of chastity, when admissible, 661.
mitigation of damages, immodest conduct of female, 662.
negligence of plaintiff, 662-3.
in action for breach of promise of marriage, 654.
of servant from service, damages are the loss sustained, 140, 662-3.
action will not lie where master has recovered a penalty, 663.

SERVANT. See Work anp Lazsor; Hrrine; Sepuction.

SET-OFF, statutory enactments, 163-6.

‘ rules applicable to, do not apply to counter-claims, 166.

not allowed in action in contract for unliquidated damages, 166.
or in tort, 166.

regulated by law of country where remedy is sought, 163.

judgments a ground of, 101.
but not a verdict before judgment, 166.

money due under an order of Nisi Prius, 172-4.

debt must be completely due, and remain due, 172-4,
must be due in the same right, 174-5.
partners, joint and several bond or note, husband and wife, 175-179.
executors, 177-9,
trustees, 180.
Inpex to Text. 793

SET-OFF — Continuad.
public body having separate accounts at their bankers, 181.
agents and brokers, 181.
difference where the broker is del credere, 182.
between companies in winding up and their members or contributories,
183-5.
sometimes allowed formerly in equity when not at law, 183-5.
where one of the cross demands was of an equitable nature, 185~7.
set-off against assignee, 189.
exceptions to rule that debts must be mutual, 189.
set-off of joint and separate debts, 189.
of one suit against another, in avoidance of circuity of action, 190.
mutual credit in bankruptcy, 190.
what is a mutual credit, 191.
must be due in same right, 192.
trustee cannot set off, 193. ;
must exist at time of bankruptcy, though no actual debt, 194.
every debt provable against bankrupt’s estate may be subject of, 194.
future liabilities, 195. :
set-off extinguishes debt, 196.
value of missing goods cannot be set off against freight, 503-4,
by tenants of compulsory payments. See RENT.

SEVERAL COUNTS, assessing damages upon, 721.
or upon the same count containing several demands, 721.
distinction in actions for slander, 722.
new procedure, 723. ‘
in detinue damages should be assessed separately, 723.
misjoinder under old procedure, 724.

SEVERAL DEFENDANTS, in case of verdict against all, damages under old

system of procedure were assessed generally, 724.

judgment reversed, where damages assessed severally, 727.

how defect might be cured, 727.

under new system, damages will be assessed separately, 725.

where some plead, and others pay money into court, 726.

where there is judgment by default against all, 727.

where some appear, and others make default, 728.

new procedure, 729. ; .

effect of recovery against one in action against another. who might have
been joined, 730.

SHARES, damages for refusal to accept, 245.
time for delivery, when shares are not in existence, 245.
what will satisfy the contract in such a case, 246-7.

damages for not returning shares, governed by the same principle as in
case of stock, 259. See Srocx.

action for money had and received, when paid for in advance, 260.

company improperly registering a person’s name, and giving him certifi-
cates of shares, held responsible to an innocent vendee, 264, n. 5.

SHERIFF, damages in trespass against, 522.

acting bona fide, receives protection of court, 522.
where door has been broken open in executing fi. fa., 523.

or ca. sa., 523.

outhouse may be broken open on a fi, fa,, but not to distrain, 524.
seizing goods owt of jurisdiction, 525.
liable for money paid to recover goods, and for costs of arrest, 525. °
when expenses of wrongful sale by, may be allowed, 525.
mitigation of damages, payments made by, 525.

verdict of inquest, 526.

100
794 Inpex to Text.

SHERIFF — Continued.

actions against for taking no replevin bond or an insufficient one, 602, 603.
damages could not exceed penalty and costs, 603.
where the value of rent, or goods, whichever was least, 603.
not liable for rent due since distress, 604.
costs of proceeding against the sureties, 604.
where bond had been lost, 605.
replevin bonds now issued by registrar of county court, 602.

for other breach of duties, damages are measured by loss caused, 11, 605-8.
when it is necessary to prove actual damage, 605.

escape, action of debt for, abolished, 607.
measure of damage in action on "the case for, 606, 608.
where injury increased by plaintifi’s conduct, 163.

action to recover money levied by, and not paid, "608.

treble damages for extortion by, 608.
effect of statute 1 Vict., ch. 55, 609.
declaration for extortion, 609.

extra costs cannot be recovered against, 609.

costs of action against, when recoverable from execution creditor, 134.

SHIP. See Marine INsuRANCE; GENERAL AVERAGE
SHIP-OWNERS. See Carriers.
SLANDER. See DEFAMATION.

SPECIAL CONTRACT, by carriers, may be a bar to any action for negli-
gence, 409.
must be reasonable and in writing, under Railway and Canal Traffic Act,
407.

SPECIAL DAMAGE, must be alleged when it is the essence of the action, 708.
where the injury is a public one, damage must be tangible, 709.
but unnecessary to show particular instances, 709.
too general an allegation of, no ground for arrest of judgment, 709.
need not be alleged, if the facts imply a legal injury, 631, 711.
but only such injury as the law will imply, can be proved, 631, 711.
matter which would itself be ground of action must be alleged, 711.
must be laid in trover, 711.
and in all other cases where it would not be implied, 712.
must be as specific as the case wili allow, 712.
distinction between particular and special damage, 713.
must be stated with accuracy, 714.
pleading under 8 & 9 W. III, ch. 11, 324, 714.
interrogatories as to, when allowed, 714.
must be shown in suits for specific performance, pam
See Damacus.

SPECIFIC PERFORMANCE, damages in addition to or substitution for, 282,
758 :

a not be given in cases where specific performance is never decreed,
59.
as in suit to enforce agreement for partnership, 759.
special damage must be shown, 760.
damages under general prayer for rélief, 760.
costs of suit for, cannot in ‘general be recovered by vendee of land against
vendor, 275-6.
but damages and costs may sometimes be recovered, %82_3.
See Cuancery Drvisron.

STAYING PROCEEDINGS, upon re-delivery of chattels, 508.
Inprex To TExt. 795

STOCK, damages for refusal to accept, 245-6.
time for delivery when not yet in existence, 245-6.
what will satisfy the contract in such a case, 245-6.
actions for not replacing stqck, price taken at time of trial, 257.
or at the day when it ought to have been replaced, 257.
or at the day when it was transferred, 257.
but not at the highest intermediate price, 257.
profits cannot be allowed for, when contingent, 258.
but bonus on stock added, 258.
transfer of, will not support count for money paid, 429.

SURETYSHIP, contracts of, 415-438.
I. Actions by the principal creditor against the surety, 415-425.
surety is liable for interest, 416.
amount of loss must be proved, 416-17.
and that it arose trom cause insured against, 417-18.
dividend must be apportioned in case of bankruptcy, 417-18.
damages without proof of loss, when promise to do a thing is absolute,
418-19.
when promise is to indemnify, 418-19.
mere delivery of a bill is not a loss, 419-20.
nor liability to suit, or commencement of action, 419-20.
payment of costs, or judgment recovered, is a damage, 420.
general indemnity only extends to lawful acts, 421-22.
otherwise when an individual is named, 422-23.
assignee of lease is a surety for assignor, 422-23.
but underlessee is not, 424-25.
therefore costs of action against his lessor not recoverable, 424-25.
liability of sureties on a replevin bond, 424, 603.
for a sheriff's bailiff, 424.
effect of a compromise, where there is an indemnity, 425-6.
defendant must show that it was disadvantageous, 425-6.
not necessary to give him notice, 425-6.
Il. Actions by the surety against the principal debtor, 425-20.
where the surety has taken a security, or indemnity, 425.
when he has taken none, action dates from payment, 425.
payment may be made without suit, 420.
by note; bond, 426.
to prevent execution sufficient, 427.
goods taken in execution not a, 428.
nor transfer of stock, nor mortgage, 429.
unless equity of redemption released, 429,
interest may be given, 429.
action by bail, 430.,
I. Actions by surety against co-surety, 431.
when right to sue arises, 430. :
proportion for which each surety is liable, at law and in equity, 431.
rule of equity will prevail in future, 431.
when they are bound by different instruments, 432.
surety cannot claim against one whom he has induced to be surety, 482.
nor where there is an agreement to the contrary, 432.
interest allowed in equity, 429.
costs of suit, 431.
underlessees not sureties for each other, where rent is entire, 432.
unless each is bound to pay the rent of the whole, 432.
IV. Implied indemnity, 433.
arising by implication at law, 433.
goods of tenant distrained for rent due by landlord, 433,
lessee and assignee of lease, 433.
calls on shares after sale, 433.
796 Inpex to TExt.

SURETYSHIP — Continued.
agent and principal, 483.
one who professes to be an agent warrants that he is so, 433.

and must indemnify those who act on his supposed authority, 433.

and is chargeable for all loss arising from the falsity of his representa-
tion, 437, ,

but not for damage which would have accrued whether his representa-
tion were true or not, 437.

costs of actions, 128, 129, 431, 437.

See Lire Insurance, 439; Frre Insurance, 439-455; Marine In-

SURANCE, 455; GENERAL AVERAGE, 468.

TELEGRAPHIC MESSAGES, damages for non-delivery of, 40.
negligence in transmitting, 413.
postmaster-general not responsible for mistakes, 414,
nor is the sender of the message, 414.

TENDER, interest does not run after, 229, 344.
its effect upon a distress, 532, 535.

THIRD PARTY, damage from wrongful act of, too remote, 110, 633.
otherwise when it results naturally from defendant’s wrong, 107-10.
in which case the whole damage, though increased by the injurious
conduct of the third party, may be recovered, 107-10. See Rieutr
oF ACTION.
liability of a slanderer for repetition by, 112-117.
cases where a wrong to A causes injury to B, 117.

TIME, period of, in reference to which damages may be assessed, 136, 144.
. damages cannot be given for any thing before cause of action, 136.

damage subsequent to action may be allowed for when it is the natural
result and not itself a new cause of action, 136, 139.

probable future loss, 138.

interest given up to judgment signed, 138.

where evidence of specific subsequent injury allowed, 138,

a legal (not moral) liability is ground of recovery, 144.

damages for continuing nuisance, which is‘a new cause of action, are not
recoverable, 141.

TITHES, treble value, in action for not “ setting out,” 737.

TITLE, want of, in plaintiff will mitigate damages in trover, 502.
so in trespass to goods, 519-20. :
and in actions for injury to land, 538. ®
See CovENANT FOR TITLE.

TITLE DEEDS§, damages in trover or detinue for, 497, 518,

TORTS, damages in actions of, 56.
motive a ground of, 57, 519, 547, 562.
unless in actions against several, 56, 518, 590, 725.
or against a principal for the acts of his agent, 57, n.,626.
are a penalty, and not merely a compensation, 57, 656.
See DaMAGczEs.

TRADE-MARK, INFRINGEMENT OF, nominal damages recoverable for, 7.
special damage by loss of custom or otherwise must be shown, 82, n. 1.
cost of litigation where plaintiff innocently, at request of defendant, imi-

tated another’s trade-mark, 129.
Inpex To Text. "97

TRANSFEROR OF BILL WITHOUT INDORSEMENT, liability of, 351.

TRESPASS TO GOODS, damages in general, their value, 615.
fixtures may be valued as such, 515.
special damages, if not too remote, 515.
in interpleader, creditor only responsible up to time of order, 51%
collision at sea, demurrage, 517.
where both parties to blame, damages divided, 518.
negligence of plaintiff, when a bar to action, 95, 110.
limited liability of ship-owners, See CaRRIERS.
carriers, See CARRIERS.
costs of setting aside judgment under which goods were taken, 120, 122.
of former action against plaintiff, 123.
manner in which goods were taken a ground of damages, 517-18.
where action is against several, 519.
or by several, 519.
seizures under Customs Acts, 502, 519.
mitigation of damages, 519.
libelous character of thing taken, 519.
want of interest in plaintiff, 520.
repayment after action, 520.
seizure under an existing judgment, 521.
recovery on a policy of insurance, 521.
debt due from plaintiff to defendant for goods taken, 521.
payments made by executor de son tort, 162.
See Suenirr; Reptevin; ILLEGAL Distress.
executors may sue or be sued for, 674, 681.

TRESPASS TO LAND, damages are measured by the injury done, not the
cost of restoration.
vary according to extent of plaintiff's interest, 538.
may be obtained by several entitled in succession, 541-3.
nominal, if no proof of duration of interest, 543-4.
right of tenant to carry away soil, 543-4,
reservation of rights in surface to grantor, 544-6.
damages for mining and carrying away minerals, 546-7.
where there is a disputed title, 546.
cases of continuing trespasses, 141.
prospective injury, when an element in damages, 546.
effect of former recovery, 547.
in case of co-trespassers, 547.
different acts may be laid as substantive damage, 548.
or as matter of aggravation, 548.
or as distinct trespasses, 549.
must be pleaded with all legal requisites, 549.
damages not limited to actual injury proved, 549.
vindictive damages, 549.
compensation for acts done by authority of Parliament, 549.
See Mesnge Prorits; EASEMENTS.
executors may sue or be sued for, 674-681.

TRESPASSER ab initio, an irregularity in distraining for rent does not make,
530.
when a wrongful distrainor is a, 536.
may be so as to part of distress, and not as to residue, 536.
when damages may be recovered by, 97.

TROVER, gist of the action is the conversion, 486.
damages in general the value of the thing, 486.
4798 InpEx To Text.

TROVER — Continued.
mode of calculating value, where price has changed, 485-492.
interest on bill or exchange, 490. :
is to be calculated on value at time of conversion, 492.
when selling price will be taken to be the value, or not, 492, 497.
where form of article has been changed since conversion, 493.
mode of valuing severed minerals, 495.
fixtures, 495.
where goods have been deposited with defendant under a void contract,
497.
value must be proved; presumption as to, 497.
of title-deeds, bills or notes, 497-498,
of void security, 499.
when rendered void by act of defendant, 499.
of policy of insurance, 499.
interest, 500.
special damages recoverable, if laid, unless too remote, 446, 499.
for goods seized under Customs Acts, 502, 518. ;
mitigation of damages, 162, 502.
want of title, 502.
action by bailee, 504.
action against unpaid vendor, 504.
keep of animal cannot be deducted, 505.
action by reversioner, 505.
right of action against third parties, 506.
re-delivery of property, 506.
applying the goods for owner’s benefit is not re-delivery, 507.
verdict by consent in case of, 507.
reduction of damages after verdict, 508.
staying proceedings where all or some articles are given up, 508.
detention, damages for, 509.
recovery in with satisfaction changes property, 510.
effect of, where verdict for less than value of goods, 512.

TRUSTEE, set-off in actions by or against, 180, 181.
trust debt is not a mutual credit, .193.

TRUSTEE IN BANKRUPTCY. See Bankruptcy.

UNDER-LESSEE, not liable on covenants in original lease, 424.
nor for costs of action against his lessor for their breach, 182, 424.
of part of several premises, held under an entire rent, not liable to con-
tribute, 431,

USE AND OCCUPATION, at common law and by statute, 354.

agreement may be proved, though void under statute of frauds, 854.
not conclusive where lessee has not enjoyed under it, 354.

value of premises, how estimated, 356, 357.

when plaintiff can only recover in respect of a legal interest, 357.
See Rent.

liability of executors for, 635,
See Rent.

VALUE, inferiority of, a ground for mitigation of damages, 159.
measure of reduction, 160.
not in actions for freight, or on an attorney’s bill, 158.
mode of estimating, in actions for not accepting goods, 239.
or stock or shares, 245.
for not delivering goods, 246.
when paid for in advance, 259-263.
InpEex to Text. 799

VALUE — Continued.
fall in market value, 24.
selling value a test of depreciation, 26.
exception as to goods at sea, 26.
for not replacing stock, 257.
or shares, 257.
for breach of covenant for title, 289.
for use and occupation, 354-5.
for loss or injury to goods by carrier, or sale by him, 400-408.
of subject-matter of fire insurance, 441-455.
of marine insurance. See Marine INSURANCE.
of general average. See AVERAGE.
in actions of trover. See TROVER.
trespass, 514, 518.
excessive distress, 531.
of foreign currency, 340.
statement of, in certain cases of shipments, 406.
double, for holding lands after receiving notice to quit, 360.
treble value of tithes, must be assessed by jury, 677.
presumption as to, in case of fraud, 497.
of distress and.rent in arrear must be found by jury, 529.
of goods sued for in detinue must be found separately, 513, 723.

VENIRE DE NOVO, in cases in which a writ of inquiry cannot issue, 781.

WAGES. See Hreme.

WARRANTY, when articles purchased with, may be returned, 263.

* damages, ‘when article is returned, are its price, 264.

when not returned, are the difference between its value, sound and
unsound, 264,
not between contract and selling price, 264.

when expenses of keep recoverable, 267.
special damages, 31, 32, 267.
expenses incurred in advancing value of article, 270.
liability to compensate second vendee, 271.
costs of action by second vendee, 131, 272.
when warranty amounts to fraudulent misrepresentation, 272.
effect of recovery for breach of warranty in an action for price, 265.
See CovENANT FoR TITLE.

WASTE. See Reparr,
WATER-COURSE, action for injury to. See EAsEMENTS.
WAY, actions for obstruction to right of. See Haszmenrs.

WEALTH OF DEFENDANT is evidence in breach of promise of marriage,
653.
quere in case of adultery, 668.

WIFE, set off of debts to or from, in actions by or against husband, 178.

WITHDRAWING RECORD, costs of; are the measure of damage for absence
of attorney, 612.
or witness, 613.

WITNESS may be attached for non-attendance, 613.
damages in action against are the costs of withdrawing the resord, 416.
or postponing the trial, 613.
action against, for penalty, 614,
no action for defamation against, 614.
800 Inpex to Text.

WRIT OF INQUIRY, when necessary, 716, 719, 727.
plaintiff must always recover nominal damages on, 717.
no evidence necessary to prove right of action, 717.
otherwise with a view to damages, when amount not admitted,
damages need not be nominal, though no evidence given, 719.
cannot supply omission by principal jury to assess damages, when they
are the express matter in issue, 731.
otherwise when they are only an accessory, 781. .
or in case of judgment by confession, or non obstante veredicto, 732.
but now a new trial could be directed, 733.

WORK AND LABOR, mode of suing for extras, when part done under a
written dbntract, 298.
when plaintiff has deviated from original plan, with or without consent,
298-9, °
cannot force defendant to return article, 300.
where plaintiff employed to make experiments, 300.
when payment of part may be claimed, before entire work done, 300.
contract with attorney is an entire one, 300. ~
unless after reasonable notice, or refusal to supply funds, 301.
no action for, where plaintiff has failed to perform his contract, 301.
unless defendant has retained something under a new contract, 301.
or himself was the cause, 304.
inferiority may be given in evidence, 301.
reduction of damages when work done, or materials supplied by em-
ployer, 159, 303.
or where employer’s goods injured, 159.
regulations as to taxing attorney’s bill, 303.
may beset off before a month after delivery, 174.
negligence when an answer to action by attorney, 158.
See Hirina.
of bankrupt, trustee cannot sue for, 696.
unless a large sum guined by it, 696.
or mixed with other debts for which they can sue, 696.
INDEX TO NOTES.

[Except when otherwise stated, this index refers onlyto the notes on'the pages indi-
cated.]

ACCOUNT STATED, damages cannot be given unless some item is shown to
have been settled, 12.

ADVANCH, made by factors, etc., interest on, 225.

ANIMALS, vicious, permitted to be at large, 92.
afflicted with glanders or infectious disease, permitted to escape on
another’s land, 92.

ANNUAL INTEREST. See InrErEst.

ASSAULT AND BATTERY, damages for, may embrace past, present and
prospective loss, 137.
matter in mitigation, 147, 148.

ASSAULT AND FALSE IMPRISONMENT. See Fause IMPRISONMENT.
AWARDS, interest on, allowed, when, 226.

BILLS AND NOTES, interest allowable on, when, 217.
BONDS, interest allowed on, when, 217.

CARRIER, failure to deliver goods according to contract, 24.
difference between contract and market price when they should have been
delivered, 24.

rule when he knew the purpose for which they were wanted, 24, 25-27.
or failure to deliver machinery, 24, 25.

rule when the contract fixes upon certain deductions from cost of carriage,

for delay, 25.

for not delivering grain, 26.

cases illustrating, Cowley ». Davidson, 26.
Ogden »v. Marshall, 26, 27.

failure to deliver at certain place, 27.

interest allowed, when, 27.

negligently permitting cattle to escape from cars, liable for expense of

recapture, 71.

for failure to carry passengers as contracted, liable for loss of time, 72.

derangement of plans, 72.

expenses of reaching destination, 72.

for wrongfully expelling passenger from conveyance, 13, 29.

insult and annoyance, elements of damage, 13.

inconvenience an element, 31, 72.

expenses of sickness direct result of breach, 29, 71.

case illustrating, Williams v, Vanderbilt, 29, 71.

by sea, liability for leakage, 384.

101

.
802 Inpex to Notes.

CARRIER — Continued.
damage to goods may be set off against freight, 386.
damage for refusing to accept freights, 387.
bound to look for other freight when shipper fails to supply as agreed, 388.
tule of damages for breach of contract to supply freight, 389, 395.
actions by, against shippers of dangerous goods, 393-394.
damage for delay, 395-396.
for loss of baggage, 419.
limitation of liability, 414.

COLLISION, measure of damage in case of, between vessels, 95.
COMPOUND INTEREST. See Inrernsr.

CONTRACT, nominal damages for breach of, when no actual damage is
shown, 9, 12. 7
when no more than nominal damage for breach should be given, 12.
illustration, French v. Bent, 12.
rule, when no sales on day fixed for delivery of same species of property
can be shown, 16.
for refusing to deliver certificate of stock, 16.
for refusing to permit transfer, 16.
interest allowed when contract price is paid in advance, 16.
for sale of seeds, rule when seeds of another kind, or worthless, are de-
livered, 16. ;
cases illustrating, Van Wyck ». Allen, 16.
White v. Miller, 17.
for delivery of goods at certain time and place, 15-17.
‘when difference between contract and market price, the rule, 15-17.
when not, 15.
illustration, McAnay v. Wright, 16.
Zehner v. Dale, 16.
Kipp o. Wiles, 16.
when time for delivery is not definitely fixed, 15-16.
when demand is necessary to establish breach, 15-17.
when property to be delivered ‘‘on or about” a certain day, is deliver-
able, 16. .
natural consequence of breach, rule when, 18.
damages within contemplation of parties, rule when, 18-21.
cases illustrating, Moore ». Davis, 18.
Booth v. Spuyten Duyvil Rolling Mills Co., 18, 19.
Paine ». Sherwood, 19.
Snell v, Cottingham, 19.
Griffin v. Colvin, 20-21.
Laurent ». Vaughan, 21.
Friedland ». McNiel, 20.
knowledge of defendant, of purpose for which property is wanted, essen-
tial, when, 18-21.
Vicksburgh R. R. Co. v. Ragsdale, 24.
Cincinnati Chronicle Co. v. White Line Trans. Co., 24.
to bel peta building within certain time, rental value, rule of damage,
when, 238.
case illustrating, Hexter v. Knox, 23. :
to put machinery in steamboat, rental value of boat, rule when, 28.
rule when machinery is defective, 23.
case illustrating, Brown v. Foster, 23.
breach of, to complete turnpike, 82.
for failure to continue person as agent, 83.
for failure to complete highway, 81, 82.
when loss of custom or profits for breach of, is recoverable, 83.
idleness of workmen not element of damage, 85.
Inpex to Noress. 808

CONTRACT — Continued.
delay in business not element, unless, 85.
not completing warehouse within time agreed, measure éf damage, 85.
for failure to supply machinery, 85.
to convey lands, damages for breach of, 275, 279.
when defectively performed, rule of recovery, 302-3.
for services, 304-311.
what excuses performance, 304-312.

CONTRIBUTORY NEGLIGENCE. See NuGuicEnce.

CORPORATION, rule of damages against, for refusing to deliver certificates
of stock, 16.
for refusing to permit transfer of, 16.
certificates of stock as subjects of set-off in actions by or against, 183-4,
bonds, 183-4.
notes, 183-4.
bills of insolvent bank, 184.
dividends, 184.

COSTS, recoverable as damage, when, 122,

COUPONS, interest allowed on, when, 217.

COVENANT, damages for breach of, as to seizin, 53-5,
when property has been paid for in money, 54-5.
when not, 54-5.
of seizin, damage for breach of, 287-288.
interest, in actions for breach of, in discretion of jury, 227.

CUSTOM, regulates question of interest, when, 225.
of creditor, 225.

DAMAGES, definition of term, 1, n. 1.
substantial, may be given when, 13.
when no actual, is shown, 10, 13.
annoyance and insult element of, when, 13.
when only actual, should be given, 15.
for breach of contract to deliver goods at certain time and ‘place, 15.
when difference between contract and market price is the rule, 15-17.
when rule does not apply, 16. .
actual loss measure of, for breach of contract to manufacture according to
sample, 16.
illustration, McAvoy v. Wright, 16.
for failure to deliver lumber, 16.
for breach of contract to deliver, when no gales of similar property at
time for delivery can be shown, 16.
for breach of contract for sale of seeds, by delivering seeds of another
kind, or those that are worthless, 16~17.
cases illustrating, Van Wyck »v. Allen, 16, 38, 34.
White o. Miller, 17.
Passenger v. Thorburn, 33, 34.
naturally arising from breach of contract, 18.
within contemplation of parties, 18.
cases illustrating, Moore v. Davis, 18.
Booth v. Spuyten Duyvil Rolling Mills Co., 18, 19.
Paine v. Sherwood, 19.
Snell ». Cottingham, 19.
knowledge of defendant of purpose for which property is wanted, essen-
. tial when, 18-21.
Griffin v. Colver, 20.
804. Inpex to Notzs.

DAMAGES — Continued.
Laurent ». Vaughan, 21.
Vicksburgh R. R. Co. ». Ragsdale, 24.
Cincinnati Chronicle Co. ». White Line Trans. Co., 24.
special, must be alleged and proved, 30.
for wrongfully expelling passenger from trajn, 18, 29.
insult and annoyance, element of, 13.
no recovery for hardships, etc., in procuring other conveyance, 29.
time lost, 29.
sickness resulting from, 29.
inconvenience element of, when, 31.
for loss of baggage, 29 :
for privately selling diseased animals, 32.
remote, not recoverable, 35, 36.
for not delivering machinery, 35.
when profits recoverable as, 36.
Fox ». Harding, 36.
loss of custom, not recoverable as, 37.
Fleming ». Beck, 37.
for mistake in sending telegram, when cipher is used, 40.
illustration, Gildersleeve v. U. 8., etc., Co., 29 Md. 392.
Manville v. W. U. T. Co., 40, 41.
for breach of promise to marry, subsequent seduction of the woman may
be shown in mitigation, 52.
for breach of contract for sale of lands, 53-5.
for failure of title to, 53-5.
exemplary, permissible when, 57-65.
when costs, etc., recoverable at, 122.
what goes in mitigation of, 145-155.
liquidated, what are, 199-203, 206.
penalty, 199-203.
when interest allowable as, 215, 222, 225-232.
exemplary allowed when, 57-65.

DANGEROUS GOODS, shipper of, liable to carrier for loss occasioned by,
393-394. ;
cases illustrating, Boston & Albany R. R. Co. ». Shanlev. 394.
Barney v. Burnstinbinder, 394.

DEBT, what judgment in, should embrace, 331, 336.
actions of, 340.

DEFAMATION, what constitutes, 615-624.
evidence of malice; other slander, 615-624, text and notes.
persisting in the charge, 624.
general evidence of character to prove malice, 624.
evidence of the circulation of the libel, 625.
when evidence of malice is inadmissible, 625.
joint actions, 625.
substantial damages may be given without proof of actual injury. 626.
future damage, 626.
evidence of specific injury after action brought, 627-631.
proof of general injury, 631, 682.
special damage must be laid, 633.
special damage must be the result of defendant’s own acts, 633.
when the act of a third party will be good special damage, 634.
where damage is the natural result of the slander, 634.
special damage too remote, 635-649.
evidence in mitigation of damage, 640-649.
that he had received previous provocation, 648.
general bad character, 649.
Invex to Notes. 805

DEFAMATION — Continued.
evidence of truth of libel, 649.
former recovery against a third party; apology for libel in newspaper,
650-652,

DEMAND, when essential, henire action for breach of contract to deliver, will
lie, 15-16.

DEPOSITS, interest allowed on, when, 218.

DETINUE, what jadgment i in, should lie for, 513.
damages must be assessed, 514,

DILAPIDATIONS, landlord may recover what, for, 367.
DRAFT, accepted, interest allowed when, 226.

EQUITY, rules in, as to set-off, 185-6.

EXECUTION, damages against sheriff for not levying, 11.
- for not returning, 11.

EXECUTOR, chargeable with interest, when, 220, 227.

EXEMPLARY DAMAGHS, not permissible, except where malice, etc., is

shown, 57-65.

in actions for negligence merely, 57, 60.

in actions by parent for injuries toa child, 57.

Pennsylvania R. R. Co. v. Kelly, 57.

for property wrongfully taken on legal process, unless malice or oppression
is shown, 58.

nor in trespass, unless intention wrongful, 58.

may be recovered when wrongful act is malicious, fraudulent, wanton, or
willful, 58.

for false imprisonment, 58, 61.

for assault and battery, 60.

for malpractice, 61.

for deceit, 61.

for false representations, 61.

for libel, 61, 62.

for slander, 61, 62.

for malicious prosecution, 61.

against innkeeper for wrongfully turning out guest, 61.

for setting fires, 61.

for trespass to iand, 61.

may be given against master for torts committed by servants, 62, 63, 64.
_ ‘illustrations, Hawes v. Knowles, 62.

for injuries to the person, 62-5.

not a matter of right, 64.

jury may give or not in proper case for, 64.

cannot be given independent of special damages, 64.

defendant’s pecuniary condition proper to be shown in connection with,
64.

may be given against part acting under statute when vower is exceeded,
when, 65

may be given in trover, 498.

in trespass to goods, 523.

in replevin, 583.

mitigation in trover, receipt of property by plaintiff after action brought,
may be shown in, 506.

EXTRA WORK, when recoverable for, 299.
806. Inpex to Norzs.

FALSE IMPRISONMENT, failure to obtain situation, not element of damage
in, 87.
damages for, 591-593.
instances and illustrations, 591-593.

FIRE INSURANCE. See Insurance. :
FOREIGN JUDGMENTS, interest allowed on, when, 218.
FREIGHT. - See Carrier.

GENERAL AVERAGE. See Marine InsuRANCE.

GOODS, nominal damages, for non-delivery of, when property has been

accepted after action brought, 9.

failure to deliver at time and place, measure of recovery, 15-17.

when difference between contract, and market price, is the rule, 15-17,
24, 26, 27. :

when not, 15.

when defendant knows purpose to which plaintiff intended to devote
them, 28, 24.

GOODS SOLD, interest chargeable when, 225.
accounts, interest on, allowed when, 225.

GUARDIAN, chargeable with interest, when, 221.

HIRING, contract of. See SzRVICEs.
HUSBAND, elements of damage in actions by, for injury to wife, 76.

IMPLIED WARRANTY. See Warranty.

INFANTS, distinction between actions by for injury to, one actions brought
by parent, 79-81.

INJURIES TO LAND. See Lann.

INSURANCE, measure of recovery ‘upon fire insurance policy, 444-448, 450.
distinction where policy is valued, 444.

INSURANCE, insurable interest in property, what is, 451-455
who has, 451-455.

INSURABLE INTEREST, in life, 440.
nature of contract, 441-442.

INTEREST, allowed on price paid, when paid in advance, in actions for not
delivering as agreed, 16.
even though subsequently delivered and accepted, 16.
case illustrating, Edward v. Sanborn, 16.
allowable as damages, when, 215-222, 225-232.
rate chargeable, 215, 230.
on what ground, and when allowable, 215-17.
on bills and notes.
on coupons, 217.
bonds, 217.
rent, 218.
in case of torts, 218.
deposits, 218.
verdicts, 218.
inpEx to Notes. 807

JUDGMENTS, 218.
what law controls, 219.
when rate of, must be proved, 220.
how may be stopped, 220, 229.
who may be charged with, 220.
interest upon interest allowable when, 222.
compound, chargeable when, 222.
semi-annual interest, 222.
annual, 222.
rule when payable annually, etc., 222.
awards, 226.
on goods sold, 225.
on excepted drafts, 226.
on accounts, 225.
demand notes, 226.
advances made by factors, etc., 225, notes.
payable on demand interest from what time, 226.
in actions for money had and received, 225.
questions-whether shall be given or not, when for jury, 227, 228.
left to agreement of parties in some States, 230-32.
on calls after forfeiture of stock, 234.

JOINT DEBT cannot be set off against action by one, 169.
JUDGMENT, interest allowed on, when, 218.

LAND, damages for failure of title to, against vendor, 53-5,
when failure is only partial, 53-5.
for refusing to convey, 53-5.
motive of vendor material, 53-5.
rule when purchase-money has been paid, 53-5.
for technical breaches of covenants of seizin, 54.
for breach of this covenant generally, 54-5.
when price has been paid in labor or property, 54-5.
damages for breach of contracts to convey, 53-5.
for failure of title to, 53-5.
when entire damage for injury to, may be recovered, 1388.
when injury is apportionable, 138, 141.
matter in mitigation in actions of trespass on, 147, 148, 162.
damage for breach of contract to convey, 275, 279, 291, 293.
injuries to, measure of recovery for, 540-543, 548.
consequentiak damages, 540-543.
illustration and instance, 540-543.

LIBEL. See Deramarion.
LIFE INSURANCE. See Insurance. ‘

LIQUIDATED DAMAGES, what are, 189-2038, 206, 209.
distinction between, and penalty, 199-203.
illustrations, 199, 203, 206, 209, 210.

MACHINERY, rule when not delivered at time agreed upon, 23, 35.
when defective, 23, 25.
cases illustrating, Brown v. Foster, 23.
Blanchard v. Ely, 25.

MALICE, element to be considered when, 57-65, 615-624.

x
808 Inpex to Nores.

MALICIOUS PROSECUTION, what constitutes, 559-561.

what must be shown, 559-561.

illustration and instances, 559-561.

measure of recovery in, 559-561.

as to the proofs on part of plaintiff in actions for, 565, notes and text.

the prosecution and acquittal must be proved, 566-7, notes and text.

proof that defendant was the prosecutor, 567, notes and text.

proof of charge and dismissal before the magistrate, 569, notes and text.

if there be probable cause the prosecutor is protected, 569, notes and text.

where the proceedings are by the act of the magistrate, 510, notes and
text. .

probable cause, how found, 571, notes and text.

evidence of the absence of reasonable and probable cause, 572, notes and
text.

malice, 573, notes and text.

disbelief of party making the charge, 574, notes and text.

proceedings in bankruptcy without probable cause, 575, notes and text.

positive evidence necessary to show that prosecution was groundless, 575,
notes and text.

effect of abandoning the prosecution, 576-7, notes and text.

absence of probable cause a strong presumption of malice, 578-580, notes
and text.

distinction between institution of a prosecution and its continuance by an
agent, 580, notes and text.

proofs on the part of the defendant, 580, notes and text.

mere suspicion no sufficient defense, 580, notes and text.

evidence of the existence of reasonable and probable cause, 581, 582,
notes and text.

evidence of reasonable and probable cause, 583-587, notes and text.

deliberation of jury, 587, notes and text.

if probable cause exists, action cannot be maintained, 587, notes and text.

proof of the offense charged, 588, riotes and text.

evidence of character, 588, notes and text.

evidence as to the plea of justification, 589, notes and text.

MARKET VALUH, how to be ascertained, 241.
case illustrating, Cohen v. Phillips, 241-243.

MARRIAGE, in action for breach of promise of, the seduction of the plaintiff
subsequent to the promise may be shown, 52.
breach of promise of, damages in, 654.

MARINE INSURANCE, for decisions relating to, see 457, 458, 459, 460, 464,
465, 468, 471, 472, 474. ,

MASTER, in actions for injury to servant, may recover only for loss of service,
76-81. ;
recovery by, does not affect servant’s right of recovery, 80.
when’ expenses of sickness may be recovered, 78.
case illustrating, Anthony »v. Slaid, 78.
contract to serve, need not be shown, 79.
action by, for false imprisonment of, 81.

MENTAL SUFFERING, proper element of damage in action for bodily in-
juries, 73-81.
but not an independent ground of action, 73-81.
case illustrating, Crocker v. Chicago, etc., R. R. Co., 74.

MITIGATION, matters that may be shown in, 145-155.
when it may be shown, 145.
in trespass, 146, 147.
Inpex to Norss. 3809

MITIGATION — Continued.
in trover, 146.
in actions against an officer, 146.
in action of seduction, that parent connived at, 165.
or was guilty of gross negligence, 165.
illustration, 165. .
in actions for slander, 640-649.
in actions for libel, 640-649.

MONEY, received for use of another, interest allowed when, 225.
rent, 228.
paid, 228,
paid by mistake, interest on, 228.

MOTIVE, of agent, as matter of aggravation, in action against the principal,
57.

material, as affording basis for exemplary damages in actions ex delicto,
57-65.

NEGLIGENCE, in actions for injuries. to person from loss of time, expenses

of sickness and mental suffering, elements of damage, 73-81.

loss of business, element, when, 76.

actions by husband for injury to wife, 76.

money paid for board, not element of damage, 83.

question whether plaintiff contributed to, for jury, 96.

should not be withdrawn from jury, when, 96.

land-owner liable for injuries resulting from defect in premises, when, 98-
101.

case illustrating, Beck v. Carter, 98.

children, when chargeable with contributory negligence, 101-102.

when not, 101-102.

degree of caution required of, 101-102.

passenger leaving car while in motion, 103.

contributory negligence of plaintiff’s servant, or person in charge of public
conveyance, 105.

but rule does not apply to negligence of next of kin, 106.

case illustrating, Crawford v. Cleveland R. R. Co., 106.

effect of. contributory, 95, 107-109.

what is, 95, 107-109.

prospective damages should be given, 137.

damages recoverable in actions for personal ines from, 597-601. text
and notes.

elements of, 597-601, text and notes.

damages not too remote, 599, text.

negligent management of vessels, 599, text.

damages where the plaintiff is insured against loss or has received full
indemnity under insurance policy, 600, text.

damages by personal representatives in cases of death from negligence,
600, text.

no deduction in respect of insurance, 601, text.

“NEW TRIAL, as cause of excessive damages, when allowed, 748, 744, 749- —
756.
when not, 743-744, 749-756.
instances and illustrations, 749-756.

NOMINAL DAMAGES, when recoverable, 9-11.
for breach of contract, 9.
performance of contract after suit boul does not prevent, 9.
for violation of right or breach of duty, 9

102
810 Inprex to Norzs.

NOMINAL DAMAGES — Continued.

illustration, Pond ». Merrifield, 9.

actual damage need not be shown, 9.

action for services, when value not shown, 10.

in action for destroying old buildings and erecting new, 12.

in trover, where property has been returned, 10.

for breach of duty, 10.

in actions against sheriff for not returning process, 10, 12.

in actions against carrier, 10.

more than, may be given when, where no actual is shown, 10.

for breach of statutory duty, 10.

for breach of duty arising from contract, or by common law, 10.

in action against railroad company for wrongfully expelling passenger, 10.

when maxim de minimis is applied, 6, 10, 11.

in action against an officer for using property attached, 10.

in actions for escape, 10, 11.

for violation of rights of another, 7, 11.

actual damage not essential, 7, 9, 11.

recoverable, though actual benefit results, 7.

smallness of damage not to be considered, 7.

case illustrating, 7. -

violation of substantial right always actionable, whether damage results
or not, 7, 8.

substantial right, what is, 8.

nonsuit denied when nominal damages may be given, 10.

new trial denied when jury fail to find nominal damages, though plaintiff
entitled to, 11.

when plaintiff will not lose or defendant acquire right, maxim de minimis
applied, 10.

for non-fulfilment of agreement, 9.

for non-delivery of property, 9.

effect of acceptance of property after action brought for non-delivery of, 9.

NOTES, in actions on, may show partial failure of consideration in mitigation,
148,
must be set up by plea or notice, 149-150.

NUISANCE, condition of premises at time of trial may be shown, 140.
when entire damages may be given for, 138, 141.
what may be shown in mitigation, 147.

OFFICER, in actions against for non-feasance may show what, in mitigation,
146.
for misfeasance, 147.

OFF-SET. See Szr-orr.

PARENT, actions by, for injury to child, measure of damage in, 57, 58, 73-81.
exemplary damages not recoverable, 57.
loss of service, 57.
expense of nursing, 57.
but nothing for disappointed hopes, 57.
lacerated feelings, 57.
but may, for expenses of wife’s sickness induced by negligent killing of
child, 57,
loss of service gist of action, 77.
when capacity to serve must be proved, 77.
case illustrating, Hall ». Hollander, 77.
when not, 77.
cases illustrating, Dennis v. Clark, 77.
Watton v. Hunt, 78.
Inpex to Norss. » 811

PARENT — Continued.
reason why nonsuit was sustained in Hall v. Hollander, 78.
distinction between action by, and action brought by the child, as to
measure of recovery, 79-81.
distinction between actions by, and actions by master for injury to ser-
vant, 79.
chargeable with contributory negligence, when, 102.

PARTNER, debt against one, cannot be set off in action by firm, 169.
debt against firm, cannot be set off against action by one, 169.
as between landlord and tenant, 171, 176.
as between mortgagor and mortgagee, 171.
claims in favor of executors, ete., 172.

.

PASSENGER, wrongfully expelled from cars, may recover substantial dama-
ges, though no actual is shown, 18, 29.
insults and annoyance may be considered, 13.
but not hardships and difficulties in getting other transportation, 29.
in action for loss of baggage containing tools, cannot recover for profits
he might have made with them, 29.
time lost by, 29, 72.
sickness incurred as consequence of delay, 29.
case illustrating, Williams v. Vanderbilt, 29.
inconvenience, element of damage when, 31, 72.
leaving car when in motion, not chargeable with contributory negligence,
; when, 103-104.

PATENT, loss of profits proper element of damage in actions for infringe-
ment of, 82.

PENALTY, what is, 199-203.
distinction between, and liquidated damages, 199-203.
illustrations, 199- 208, 206, 209, 210, 211.
actions for, how brought, iC
when statute does not provide what, may sue, 4.
when action must be in name of State, 4.

PERSONAL INJURY FROM NEGLIGENCE. See NeeuicEnce.
PRESUMPTIONS against wrong-doer, 68.

PROFITS, element of damage, when, 36, 37.
Fox v. Harding, 36.
when not, 39, 40.
element of damage, when, 82-83.
evidence of loss of, not admissible, when, 395.

PROMISE TO MARRY, subsequent seduction may be shown to diminish
damages, 52.

PUNITIVE DAMAGES. See Exempiary DaMaGEs.

REMOTE DAMAGES, what are, 67-71. e

not recoverable, 35-6, 67-71.

loss not recoverable, 35, 39.

illustrating, Brayton v. Chase, §5.

profits recoverable, when, 36, 37.

in actions for breach of promise to marry, 67-8.

consequence of marrying person and forming unhappy alliance cannot be
considered, 67.

cost of traveling, moving, etc., not recoverable in action for breach of con-
tract to employ, 68.
812 Inprex to Notes.

REMOTE DAMAGES — Continued.
cases illustrating, Benziger v. Miller, 68.
Noble v. Ames Mfg. Co., 68,
failure to obtain situation because falsely imprisoned, not special dam-
age, 87.
selling gunpowder to boy, 89.
selling naphtha for illuminating purposes, 89.
case illustrating, Wellington v. Downer Oil Co., 89.
being compelled to travel longer distance, because bridge insufficient, 89.
loss of' rent of pews because church not completed in time, 89.
ox dying from eating too much corn upon premises insufficiently fenced, 92.
case illustrating, Harold o. Myers, 92.
instance where wrong to one is an injury to another, 116-117.
cases illustrating, Longridge . Levy, 116.
Thomas v. Winchester, 116.

RENT, interest allowed on, when, 218, 226.
what may issue from, 354.
tenant not relieved from, by destruction of premises, 354.
apportionment of, 388.
covenant to repair, 362. .

.
RENTAL VALUE, rule of damage, when, 23.
cases illustrating, Hexter ». Knox, 23.
Brown 2. Foster, 23.
when depreciation in, not element of damage, 82-83.
when it is measure of recovery, 83.

REPLEVIN, damages, measure of, 533.
exemplary, may be given, 533.

SALES, of goods to be paid for on particular days, interest, 228.
generally, 225.
for cash, interest from date of, 228.
damage for refusing to accept goods, 239-244, 254.
in case of stock, agreed to be taken back in certain contingency, 239.
vendor may sell at current price and recover balance of vendee, 239-240.
when property has no market value, rule, 239-240.
when goods paid for in advance, 240.
illustration, Chamberlain ». Fair, 240.
rule when property has not been sold in reasonable time, 240, 241, 244.
how market value is ascertained, 241.
illustrating, Cohen v. Phillips, 241-248.
damages for refusing to deliver, rules, 247-250, 252.
when price is paid in advance, 249.
on sale of fruit trees, 252.
when separate deliveries are made, 253.
on sales of shares of stock, 259.
when property to be paid for in specific articles, 2438-244.

SEDUCTION, what damages in action of, are predicated on, 164.
subsequent unchastity not admissible, 164.
when former unchastity is, 164.
loss of service, direct consequence of the seduction, is sufficient, 164.
elements of damage in actions for, 164.
cases illustrating, Phelin ». Kinderline, 164.
Fox v. Stevens, 164.
subsequent marriage of daughter does not defeat action, 164.
when proof of seduction under promise to marry is admissible, 165.
Inpex to Norss. 813

SEDUCTION — Continued.
sexual intercourse must be shown, 165.
sae cannot be required to testify to former intercourse with others,
5.
that parent connived at, may be shown, 165.
that parent was guilty of gross negligence, 165.
who must bring, 657-660.
what must be proved in, 657-660.
what may be shown in aggravation, 658.
* mitigation, 659.

SEIZIN, damage for breach of covenant of, 286, 288, 291-298.

SEMI-ANNUAL INTEREST. See Inverzst.

SET-OFF, what may be pleaded as, 166-173.
when damages may be, 166, 167.
unliquidated damages may be, when, 167.
generally only liquidated damages can be, 167.
demand must have been due when action was brought, 167.
when damages are regarded as liquidated, 167.
damages arising from a tort not subject of, 167.
exceptions, 168.
tort cannot be waived, 168.
demands barred by statute of limitations, 168.
must be mutual, 168, 175.
when are regarded as mutual, 169, 175.
must be due in same right, 168, 170, 175.
exceptions, 168-9, 175.
when plaintiff is only nominal, 169.
joint debt against separate, 169.
several debt against joint, 169.
as to partnership debts, 169.
debts of partner, 169.
when assigned debt may be pleaded as, 170.
when set-off will not be permitted, though demands are mutual, etc.,
170-171.
in actions against a legatee, 172.
debts against an agent, 173.
or in favor of, 173.
contingent claims, 173.
as against makers of a joint and several note, 177.
as against corporations, 177.
certificates of stock, 183-4.
bonds, 183-4.
bills of insolvent banks, 184.
deposits, 184.
dividends, 184.
other demands due from, 184,
equity, rule in, as to set-offs, 185-6.
damage to goods by carrier may be set off against freight, 386.

SERVANT, leaving service before expiration of term, 304-311.
what is good excuse for, 304-312.
remedies against master for improper discharge, 317-827.
measure of recovery for, 317-327.
See MastTER.

SERVICES, contract for, for term, no recovery unless fully performed,304-311.
unless legal excuse is shown, 304-311.
what is legal excuse, 304-312.
improper discharge of servant by master, rule of recovery in, 317-327.
remedies for, 317-827.
814 Inpex to Noress.

SHERIFF, damages in actions against, for not serving process, 11.
when nominal, only, for not returning process, 11.
for escape, 11.
for not levying execution, 11.

SLANDER, matter in mitigation, 148-155.
must be pleaded, 150.
See DeFamMaTION.

SMART MONEY. See Exemprary Damaazs.

SPECIAL DAMAGES, must be alleged and proved, 30, 34.
cannot be recovered under general allegations, 30, 34.
for breach of warranty, 34.
must be pleaded, 709.
what may be recovered as, 709.

SPECIFIC ARTICLE, contract to pay in, rules as to, 243-244.

STOCK, damage for refusing to put on register, 264, 265.
damages for converting, 257.

TELEGRAM, damages for mistake in sending, when message is unintelligible,
40.

TELEGRAPH COMPANY, not liable for loss resulting from mistake in send-
ing dispatch when message is not intelligible, 40.
are, when message is intelligible, 40.
only liable for probable loss, 43.

TENDER, of sum due, stops interest, 229.
except, 229-230.

TOLLS, not element of damage for failure to complete turnpike within agreed
time, 82.

TORTS, interest allowed in actions for, when, 218.

TRADE-MARK, loss of profits allowed in actions for infringement of, 82.
distinction between actions for, and patent, 82.
case illustrating, Leather Cloth Co. v. Hirschfield, 82.

TRESPASS, what may be shown in mitigation of, 146, 147, 148.
to goods, measure of recovery for, 516.
what defendant may show, 519, 520.
animus of defendant may be shown, 523.
exemplary damages in, 523.
abuse of legal process, 537.

t

TROVER, for carpet bag, being deprived of use of clothes, not element of
damage, except, 83.

matter in mitigation, 146, 148.
when the action lies, 186-187.
what plaintiff must show, 186-187.
damages recoverable in, 488, 489, 492.
for conversion of securities, 490.
property having only special value, 493.
for title deeds, etc., 498.
exemplary damages may be given, 498.
interest allowed, when, 500.
special damages, 501.
Inpex to Notes. 815

TROVER — Continued.
when price at which plaintiff had contracted to sell the property may be
recovered, 501.
in case of conditional sales, 505.
receiving back property after action brought, effect of, 506.
title to property, effect of judgment upon, 510.
settlement with one of two or more tortfeasors, 512.

TRUSTEES, chargeable with interest, when, 221.
may charge interest, when, 222, 227.

VALUED POLICY. See Insurance.
VERDICTS, interest allowed on, when, 218.
VICIOUS ANIMAL. See ANIMALS.

WAREHOUSE, failure to complete in time agreed, measure of damages for, 85.
machinery, failure to supply as agreed, 85.

WARRANTY, knowingly selling diseased animals, 32.
as to quality of property sold, 32.
difference between value of property as it is, and value if as warranted,
32-34,
illustrating, Murray v. Jennings, 33. .
sale of note, 33. :
special damage from breach must is alleged, 33.
rule as to articles manufactured for a specific purpose, 33.
or sold for special purpose, 33, 34.
cases illustrating, Milburn 2. Belloni, 33.
Passenger ». Thorburn, 33, 84.
on sale of horse, as kind and gentle, 34.
damage for breach of, on sale of goods, 265.
manufactured articles, 265.
damages for, may be recouped or sued for, 266.
implied warranty, 268-270.
when raised, 268-270.
for sale of seeds, 16, 17, 268.
_ breach of warranty of title, 283.

WORK, extra, when recoverable, 289.
defectively performed, rule of recovery for, 302-3.
See SERVICEs.