ness, and that for the same rent; and to justify such a rule of damages this assumption must be taken as a conclusive presumption of law. However such a presumption might be likely to accord with the fact in the city of New York, in most western cities and towns it would be so obviously contrary to the common experience of the facts, as to make the injustice of the rule gross and palpable. But we need not further discuss this point, as a denial of any such presumption was clearly involved in our former decision. The plaintiff in this case did hire another store, "the best he could obtain, but not nearly so good for his business"-"his customers did not come to the new store, and there was not so much of a thoroughfare by it not one quarter of the travel — and he relied much upon chance custom, especially in the watch-repairing and other mechanical business." This injury to the plaintiff's business was as clearly a part of his damages as the loss of the term itself. This point, also, was decided in the former case, and we there further held that the declaration was sufficient to admit the proof of this species of loss. Now, if the plaintiff is to be allowed to recover for this injury to his business, it would seem to follow, as a necessary consequence, that the value of that business before the injury, as well as after, not only might, but should be shown, as an indispensable means of showing the amount of loss from the injury. If the business were a losing one to the plaintiff before, his loss from its being broken up or diminished (if anything) would certainly be less than if it were a profitable one. It is not the amount of business done, but the gain or profit arising from it, which constitutes its value. But it is insisted that loss of profits constitutes no proper ground or element of damages. If there be any such rule of law it is certainly not a universal, and can hardly be called a general rule. Decisions, it is true, may be found which seem to take it for granted that the rule is universal. But there are numerous cases, even for breach of contract, in which profits have been properly held to constitute, not only an element, but a measure (and sometimes the only measure) of damages. . . . But whatever may be the rule in actions upon contract, we think a more liberal rule in regard to damages for profits lost, should prevail in actions purely of tort (excepting perhaps the action of trover). Not that they should be allowed in all cases without distinction; for there are some cases where they might, in their nature, be too entirely remote, speculative, or contingent, to form any reliable basis for a probable opinion. And perhaps the decisions which have excluded the anticipated profits of a voyage broken up by illegal capture, or collision, may be properly justified upon this ground; upon this, however, we express no opinion. But generally, in an action purely of tort, where the amount of profits lost by the injury can be shown with reasonable certainty, we think they are not only admissible in evidence, but that they constitute, thus far, a safe measure of damages; as when they are but another name for the use of a mill (for example), as in White v. Moseley, 8 Pick. 356; or for the use of any other property where the value or profit of the use can be made to appear with reasonable certainty by the light of past experience, as might often be done where such profits had been for a considerable time uniform at the same season of the year, and there are no circumstances tending to show a probable diminution, had the injury not occurred. And possibly the same view, subject to the like qualifications, might have been taken of the profits of the plaintiff's business, had it been confined to the mechanical trade of repairing watches and making gold pens, particularly if done purely as a cash business. But this business seems to have been carried on with that of the sale of jewelry; he kept a jewelry store, and the profits of so much of his business as may be regarded as mercantile business, are dependent upon many more contingencies, and, therefore, more uncertain, especially if sales are made upon credit. Past profits, therefore, could not safely be taken as the exact measure of future profits; but all the various contingencies by which such profits would probably be affected should be taken into consideration by the jury, and allowed such weight as they, in the exercise of good sense and sound discretion, should think them entitled to. Past profits in such cases, where the business has continued for some length of time, would constitute a very material aid to the jury in arriving at a fair probable estimate of the future profits, had the business still continued without interruption. Accordingly such past profits have been allowed for this purpose, both in actions ex contractu and ex delicto, though more frequently in the latter, where from the nature of the case no element of greater certainty appeared, and the actual damages must be more or less a matter of opinion; and where, as in the present case, though somewhat inconclusive, it was the best evidence the nature of the case admitted. See Wilkes v. Hungerford, 2 Bing. N. C. 281; Ingram v. Lawson, 6 Bing. N. C. 212; Lacour v. The Mayor, 4 Duer, 406; and the following in actions upon contract: Driggs v. Dwight, 17 Wend. 71; Bagley v. Smith, 10 N. Y. 489. . . . We are therefore entirely satisfied that all the questions put to the witness, Allison, touched the nature, extent, and profits of the business, before and after the trespass, were competent, and improperly overruled; and that the charge of the Court, so far as it excluded all consideration of the good will of the place, its peculiar value to the plaintiff, and his probable profits, was erroneous. The judgment must be reversed, with costs to the plaintiff, and a new trial granted. The other Justices concurred.1 1 [NOTES: "Certainty of loss affecting recovery for loss of profits." (H. L. R., XIII, 149.)] 132. BALLOU v. FARNUM SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1865 11 All. 73 [Printed ante, as No. 30.] 133. LAMB v. STONE SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1831 11 Pick. 527 ACTION on the case. The declaration contained five counts; the fourth and fifth of which will show the nature of the action. . . . The fifth count alleges, that whereas Thompson, at Oxford, on December 7, 1826, was indebted to the plaintiff in the sum of $56, and was fraudulently and wrongfully contriving and intending to prevent the plaintiff from recovering the same of Thompson by putting out of his possession the property and estate of which he was possessed, so that the same could not be come at to be attached by due process of law, and avoiding the process of law provided for the collection of debts, by going out of the Commonwealth and the reach of said process of all which the defendant did, in order to aid and abet Thompson in his wrongful and fraudulent intent, and with the intent to injure and defraud the plaintiff of his demand against Thompson, take into his possession, purchase, and receive the property and estate of Thompson, then and there being found, of great value, to wit, $250, and did fraudulently and with the intent to deprive the plaintiff of the means of recovering his debt of Thompson, aid, abet, and assist Thompson to avoid the process of law provided for the collection of debts, by departing out of the Commonwealth, which Thompson did, and has ever since remained without the reach and effect of the legal process of the Commonwealth, in foreign parts, to wit, in the State of Vermont; whereby the plaintiff was deprived of the means of collecting his debt, as he might and would otherwise have done, and was about to do, by attaching the property or arresting the body of Thompson by due process of law, and has ever since been deprived of his debt and all means of collecting the same or enforcing payment thereof, and has wholly lost the same, and has been otherwise greatly injured by the fraudulent doings of the defendant as aforesaid. The general issue was pleaded, and upon the trial a general verdict was returned for the plaintiff. The defendant moved in arrest of judgment, upon the ground that no sufficient cause of action was set forth in the declaration. C. Allen and Barton, in support of the motion, said the plaintiff had a plain remedy at law, either by attaching the property itself, if it could be found, or if it had been secreted, by summoning the defendant as trustee [garnishee] of Thompson; this new remedy, therefore, by an action on the case, as unnecessary and would not be sustained by the Court. Com. Dig. Action upon the case, B 8; Com. Dig. Action upon the case for a deceipt, E 5. There was no privity between these parties. The plaintiff had acquired no lien on the property; and the alleged damage to him was a consequence so remote, that the law will not take notice of it. The injury was common to all creditors of Thompson and not particular to one; and under such circumstances an action of the case does not lie. Com. Dig. Action on the case, B 2; Co. Lit. 56 a. The damages which the plaintiff may have sustained are entirely unnecessary. Newton and Washburn, for the plaintiff. A fraud is set forth in the declaration, and it operated to the injury of the plaintiff, inasmuch as it prevented him from securing his demand against Thompson. It is a general principle, that where the law prohibits an injury, it gives a remedy by action. 1 Chit. Pl. 83; Ashby v. White, 1 Salk. 21; Peabody v. Peters, 5 Pick. 3. It is true, that in cases like the one at bar, a party is permitted to attach the property by the ordinary process, or by the trustee process. Burlingame v. Bell, 16 Mass. R. 320; Devoll v. Brownell, 5 Pick. 448. But here the property could not be found to be attached in the first mode, and the trustee process is not an adequate remedy. . . . The opinion of the Court was afterwards drawn up by MORTON, J. This case comes before us on a motion in arrest of judgment. The verdict of the jury establishes every material allegation in the plaintiff's,declaration. And every fact substantially set forth is to be taken to be true. The question for our decision is, whether these facts are sufficient to entitle the plaintiff to judgment. Although the verdict is general, yet in this case, if either count is good, the verdict may be applied to that count and judgment be rendered upon it. The following are all the material allegations contained in either of the counts - That the plaintiff had a just debt due him from one Thompson that the latter had property liable to attachment sufficient to pay this debt that the defendant took a fraudulent conveyance of this property-that Thompson has absconded from the State - that the plaintiff has not been able to arrest him, to attach his property, or otherwise to obtain satisfaction of his debt and that the acts done by the defendant were done with intent to defraud the plaintiff, by preventing him from securing or getting satisfaction of his debt. Some of these are omitted in several of the counts; but no one contains any other material allegation. Will these facts support an action? Before proceeding to the investigation of the main question, it may be proper to remark, that the declaration contains no averment that Thompson is insolvent, or that he has not, where he now resides, property liable to be taken, sufficient to satisfy the debt, or that any suit has ever been commenced against him, or any attempt made to arrest his body or attach his property; nor is it alleged, except by implication, that he has not in this State real estate or personal property other than that transferred to the defendant, liable to attachment. It ought also to be further remarked, that this is not an action of conspiracy or of case in the nature of conspiracy. It is not founded upon any illegal combination or confederacy. The declaration does not set forth any conspiracy to defraud the plaintiff or to evade or defeat any legal process. No such fact can be presumed to exist; and therefore we have no occasion to determine what effect such an averment would have. It will however be perceived, that some of our reasoning would apply to such an action, as well as the one before us. This is a special action of the case, depending upon the precise facts set forth in the declaration. It is an action of new impression. It is admitted that no precedent can be found for it. This circumstance of itself forms a pretty strong objection. It ought however to have less weight in this than any other form of action. In the diversified transactions of civilized life new combinations of circumstances will sometimes arise, which will require, in the application of well settled principles of law, new forms of declarations. Among the old and wise axioms of the law none are more sound than those upon which the plaintiff attempts to found this action. In law, for every wrong there is a remedy. 3 Bl. Com. 123; Ashby v. White, 1 Salk. 21. Whenever the law creates or recognizes a private right, it also gives a remedy for a violation of it. 1 Chit. Pl. 83; 11 Johns. R. 140. The general principle, that whenever there is fraud or deceit by the one party and injury to the other, or damnum cum injuria, there an action will lie, is very often referred to with approbation, and always recognized as good law. Upton v. Vail, 6 Johns. R. 182; Pasley v. Freeman, 3 T. R. 51; Eyre v. Dunsford, 1 East, 329. But these principles, however sound, must be understood with such qualifications and limitations as other principles of law equally sound necessarily impose upon them. It is very clear that there may be many moral wrongs for which there can be no legal remedy. And there may be legal torts in which the damage to individuals may be very great, and yet so remote, contingent, or indefinite, as to furnish no good ground of action. 3 T. R. 63. Without entering further into the explanation of these principles, their extent, qualifications, or limitations, we will proceed to inquire how far they may be relied upon in support of this action. To render them applicable the plaintiff must show that he has sustained damage from the tortious act of the defendant, for which the established forms of law furnish him no remedy. If he may have redress by any of the forms of actions now known and practised, it would be unwise and |