sell him goods, or hire him a ship at a future day, the benefit to A. is the profit flowing from the transaction, and to this he is entitled. But, when the thing purchased is a specific article, and not the right to make a profit, the measure of damages will be the value of that article, or the difference between the contract price 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. This distinction has been very clearly pointed out in a case in the Supreme Court of New York, Masterton v. The Mayor of Brooklyn, 7 Hill (American), 61. 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 delivering 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 accordingly 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. Nelson, C. J., said: It is not to be denied that there are profits or gains derivable from a contract which are *uniformly rejected as [*600 too contingent and speculative in their nature, and too dependent upon the fluctuation of markets and the chances of business, to enter into a safe or reasonable estimate of damage. Thus, any supposed success-ful operation the party might have made, if he had not been prevented from realizing the proceeds of the contract at the time stipulated, is a consideration 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 connexion with the stipulation 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 too remote and uncertain to be taken into the account in ascertaining 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,-entering into and constituting a portion of its very elements, something stipulated for, the right to the enjoyment of which is just as clear and plain as to the fulfilment of any other stipulation. They are presumed to have been taken into consideration and deliberated upon before the contract was made, and formed perhaps the only inducement to the arrangement.'" The damages

N. S., VOL. II.-26

here claimed clearly do not fall within that principle: and it is impossible not to foresee the inconvenience and the difficulty that will result from a departure from the broad rule which these authorities lay down. [WILLES, J.-I am by no means satisfied that this is an action for breach of contract.] It is submitted that this is *substan*601] tially an action for the breach of the implied contract on the part of the tenant to deliver up possession of the premises at the expiration of his tenancy. The rule is laid down in Sedgwick on Damages, pp. 66 et seq. and pp. 210 et seq., in terms similar to those in Maine, and several authorities cited, the general result of which is, that "the damage to be recovered must always be the natural and proximate consequence of the act complained of:" and this rule is equally applicable to actions of tort as to actions upon contract. "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:" Maine, p. 217, citing Williams v. Archer, 2 C. & K. 26 (E. C. L. R. vol. 61), 5 C. B. 318 (E: C. L. R. vol. 57). "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 were worth 37. 58. 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 refusal and the price at the time when the certificates were given up; and they found accordingly. This direction was held to be correct, on a writ of error." Pounsett v. Fuller, 17 C. B. 660 (E. C. L. R. vol. 84), further illustrates this principle.

Mundell, for the respondent.-This is not a plaint in contract, but strictly in tort: Doe d. Cheny v. Batten, Cowp. 243; Goodtitle v. North, 2 Dougl. 583; Dunn v. Large, 3 Dougl. 335. The tenant is a wrongdoer in holding over after the expiration of notice: from the time the landlord's title accrues, he is a trespasser. [COCKBURN, C. J.Was this man a trespasser during the *time of the occupation in *602] respect of which you accepted rent from him?] It is expressly found in the case that there has been no waiver; and it appears from the statements therein that the appellant had been previously ejected. Draper v. Crofts, 15 M. & W. 166,† shows that this is not an action for breach of contract. It was there held, that, where there is a demise to A. and B. for a term, and B. holds over after the expiration of the term, without A.'s assent, A. is not liable for rent becoming due during such holding over. And Hanslip v. Padwick, 5 Exch. 615,† is an authority to show, that, even if this were a case of contract, the damages in question would be recoverable. The argument on the other side, if well founded, would prevent all dealing with an estate in reversion.

The defendant must have contemplated at the time of entering into the contract of tenancy, that the landlord would let the premises to a new tenant before the expiration of his term: and the case finds that he did in fact know that the premises had been let to Harcott, and that Harcott threatened an action if he did not obtain possession. Professor Sedgwick, in treating of the measure of damages in an action for mesne profits, says,-2d edit. p. 128,-"It is plain that the measure of compensation which we are now considering, has been involved in confusion by the technical character of our forms of action. The dicta on the subject,' says Gibson, C. J., in Pennsylvania, seem to have been predicated by judges who had no precise idea of it, for they have not defined it by any landmarks.'(a) The action of trespass, being one of tort, admits of any evidence in aggravation, and therefore, in one sense, it is correct to say that the damages in this proceeding are entirely at large and under the control of the jury. But, on the other hand, [*603 *there is nothing necessarily in the action in the nature of a trespass. The property may have been withheld and the rents received in entire good faith. In this case the allegations of force, &c., are purely fictitious, and it certainly never would be tolerated on such facts that the jury should give any damages beyond the actual value of the income. It may then be said, as long as the technical form of action is maintained, that, where circumstances of malicious aggravation are proved, such, for instance, as a wilful holding for the purpose of oppression, the jury may give vindictive or exemplary damages, but that, where no such facts are shown, they are limited to the actual annual value of the property, with interest thereon, and the costs of the ejectment suit." This is an exceptional case. [COCKBURN, C. J.-Do you contend, that, if the landlord had let the premises to the new tenant for the purposes of a manufactory, and the latter had purchased expensive machinery which in consequence of his inability to obtain possession had become useless to him, and he had thereupon brought an action against the landlord for the breach of contract, and recovered large damages against him, the tenant holding over would be liable to recoup him?] It certainly would be difficult to urge the argument to that extent. [COCKBURN, C. J.—If so, where is the line to be drawn?] The rule laid down in Sedgwick for the action for mesne profits seems to be the reasonable one. One of two persons must suffer. Is it to be the man who has dealt legally and properly with his property, or he who has been guilty of the wrong?

Phipson, in reply.-There is no reason for holding this to be an exceptional case. In Tindall v. Bell, 11 M. & W. 228,† which was an action for running down a ship, it appeared that the plaintiff had been obliged, *in consequence of the injury, to employ a steam-tug, the owners of which demanded 150l. for salvage, and commenced

(a) Alexander v. Herr, 11 Penn. Rep. (American), 537.

[*604

a suit in the Admiralty Court against the plaintiff, who paid 201. into court, and that the Admiralty Court ultimately decreed 451. to the salvors and it was held, upon these facts, that the plaintiff was not entitled to recover the amount of the costs incurred by him in that suit. [WILLES, J., referred to Short v. Kalloway, 11 Ad. & E. 28 (E. C. L. R. vol. 39), where Lord Denman says that "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."] This subject underwent considerable discussion, and all the modern authorities are collected, in Smith v. Howell, 6 Exch. 730.† In Harding v. Crethorn, 1 Esp. N. P. C. 57, upon a tenant holding over, the extent of his liability was assumed to be the rent.

COCKBURN, C. J.-I am of opinion that the decision of the judge of the county court was right, and that his judgment must be affirmed. I am far from saying that a landlord would be entitled to recover any special damage that might result from his inability to fulfil the contract he has entered into, in consequence of his tenant wrongfully holding over after the expiration of his term either by effluxion of time or by a legal notice to quit, where he has re-let the premises for any special and extraordinary purpose. But here the landlord claims no more than what he has been called upon to pay in the shape of damages for being deprived of the ordinary use of the land. Having let the premises, he was prevented from fulfilling his contract with the new tenant by the wrongful act of the defendant in refusing to go out when his term expired; and for that breach of contract, so occasioned by the defendant's wrongful *act, the plaintiff has been compelled to pay dam*6051 ages to the party with whom he contracted. This use of the land by the landlord, viz., the letting it to a new tenant, is the common and ordinary course of dealing on the part of an owner of land. The defendant, therefore, must have understood, that, when the plaintiff gave him notice to quit, he would enter into a contract with a new tenant to let the premises to him from the expiration of such notice. And in this case there is the further and not unimportant fact that the tenant was apprised of the fact that the landlord had re-let the premises, and consequently was aware of the inconvenience and loss he was exposing him to by his improper conduct. I therefore think it not at all unreasonable, but, on the contrary, very salutary, to hold him liable to compensate his landlord to the extent of the natural and necessary consequences of his wrongful act.

CRESSWELL, J.-I am of the same opinion. I think this may fairly be treated as an action for the wrong. The defendant had notice to quit: he was therefore guilty of a wrong in holding over after the expiration of his tenancy. I do not say that the defendant could be held responsible for extraordinary damages accruing from any peculiarity in the contract into which the plaintiff might have entered with the new

tenant; but only for any ordinary claim which could be made upon him for not giving up possession pursuant to his contract. As far as that goes, it seems to me that the decision of the county court judge was right.

WILLIAMS, J.-I am of the same opinion. So far as regards the assessment of damages, I think this may very well be treated as an action for mesne profits. All that the plaintiff seeks to recover, is, the damages he has sustained from the act of the defendant. I by [*606 *no means intend to express an opinion that these damages would not have been recoverable if this were to be considered as an action of contract.

WILLES, J.-I am of the same opinion. I would wish, however, to guard myself from admitting that, apart from contract, the tenant is liable for holding over. But, assuming this to be in the nature of an action of trespass, the costs and damages here claimed are nothing more than those which naturally resulted from the defendant's wrongful act. It is not suggested that the damages paid to Harcott were paid to him as compensation for the loss of a good bargain. I therefore concur in the judgment pronounced by my Lord and the rest of the court. Appeal dismissed, with costs.

PATTEN v. REA. May 25.

A master is responsible for an injury occasioned by the negligent driving of his servant, where he is acting at the time in his service and in a manner impliedly sanctioned by him. A., the general manager of the defendant, the proprietor of a horse repository, was possessed of a horse and gig, which were kept for him upon the defendant's premises free of charge, and were used by A. in the conduct of the defendant's business. In going (with the knowledge of the defendant) upon the defendant's business, with the horse and gig, A. drove against and killed the plaintiff's horse :-Held, that the defendant was responsible; and that it was immaterial that A. was also going on private business of his own.

THIS was an action against the defendant for negligence in driving a horse and gig. The declaration stated that, by the wrongful act, neglect, and default of one William Taylor, then being and acting therein as the servant of the defendant, a certain horse and carriage of the defendant were driven upon and against a horse of the plaintiff, which last-mentioned horse was thereby killed.

*The defendant pleaded,-first, not guilty,-secondly, that [*607 the horse and carriage in the declaration mentioned were not the property of the defendant as alleged,-thirdly, that the horse and carriage in the declaration mentioned were not under the care, management, and direction of the defendant as alleged. Issue thereon.

The cause was tried before Crowder, J., at the first sitting at Westminster in Hilary Term last. The facts which appeared in evidence