unsafe to sanction an untried one, the practical operation of which cannot be fully foreseen. The Court will adopt a new remedy to prevent the failure of justice, or to enforce the settled principles of law; but never when justice can be attained by any of the remedies already known to the law. Com. Dig. Actions on the Case, B 8. The gist of the injury complained of is the fraudulent purchase by the defendant, of the property of the plaintiff's debtor. If the sale was fraudulent, it might be avoided by creditors, and the property was liable to attachment after as well as before the conveyance. The fraud could be established quite as easily in a suit for the chattels themselves, as in the present case. There is no averment that the defendant had concealed the property, removed it out of the Commonwealth, or in any other way so disposed of it that it could not be attached. But even if it were so, and the property could not be come at to be attached specifically, yet it might be attached in the defendant's hands by the trustee process. In this event the defendant would be compellable to disclose all the circumstances attending the transaction, on oath; and if he did not answer truly, would be liable to a special action on the case, by St. 1794, c. 65, § 9. It would be difficult to show any good reason why the plaintiff might not obtain legal justice in the one or the other of these modes, as easily and surely as by the present action. Burlingame v. Bell, 16 Mass R. 320; Devoll v. Brownell, 5 Pick. 448. . . . This action, if sustained, would establish a precedent which would produce in practice great inconvenience and oftentimes do manifest injustice. If the plaintiff may maintain this action against the defendant, so may every creditor of Thompson. The plaintiff had done nothing to give him priority. Shall the fraudulent purchaser be holden to pay all the debts of the fraudulent vendor? Justice does not require this. The conveyance might be fraudulent in law, and yet there might be no moral turpitude in the transaction. The property conveyed might be very small and the debts very large. Shall the value of the property transferred be apportioned among all the creditors? By what rules shall the apportionment be made? Shall the creditor who first sues be entitled to the whole, if his debt be large enough to require the whole for its satisfaction? If one creditor should attach the property specifically, another should summon the fraudulent vendee as trustee of the vendor, and a third should commence an action like this, which would have the preference? Can the same party resort to more than one of these remedies at the same time? And would judgment in the one be a bar to the other? Many cases might occur, in which it would be extremely difficult to adopt any rule of damages which would do justice to all the parties interested. But besides these practical inconveniences, which are of themselves insurmountable, there is another objection fatal to the present action. The injury complained of is too remote, indefinite, and contingent. To maintain an action for the deceit or fraud of another, it is indispensable that the plaintiff should show not only that he has sustained damage and that the defendant has committed a tort, but that the damage is the clear and necessary consequence of the tort, and that it can be clearly defined and ascertained. What damage has the plaintiff sustained by the transfer of his debtor's property? He has lost no lien, for he had none. No attachment has been defeated, for none had been made. He has not lost the custody of his debtor's body, for he had not arrested him. He has not been prevented from attaching the property or arresting the body of his debtor, for he never had procured any writ of attachment against him. He has lost no claim upon or interest in the property, for he never had acquired either. The most that can be said is, that he intended to attach the property and the wrongful act of the defendant has prevented him from executing this intention. Is this an injury for which an action will lie? How cart the secret intentions of the party be proved? It may be he would have changed this intention. It may be the debtor would have made a bona fide sale of the property to some other person, or that another creditor would have attached it, or that the debtor would have died insolvent, before the plaintiff would have executed his intention. It is therefore entirely uncertain whether the plaintiff would have secured or obtained payment of his debt, if the defendant never had interfered with the debtor or his property. Besides, his debt remains as valid as it ever was. He may yet obtain satisfaction from property of his debtor, or his debtor may return and pay him. On the whole it does not appear that the tort of the defendant caused any damage to the plaintiff. But even if so, yet it is too remote, indefinite, and contingent, to be the ground of an action. Among the many cases cited by the plaintiff's counsel, those of Adams et al. v. Paige et al., 7 Pick. 542, Yates v. Joyce, 11 Johns. R. 136, and Smith v. Tonstall, Carthew, 3, bear the greatest resemblance to the case at bar. But an examination of these cases will not only show that there is an obvious and broad distinction between them and the one under consideration, but that the principles adopted in all of them support the ground now taken by the Court. . . In all these cases the plaintiffs had a clear and valuable interest in or lien on certain property, which was defeated or destroyed by the tortious acts of the defendants. Not so in the case at bar. The plaintiff does not allege that he had any special property or any interest in or claim on any property which was destroyed or injured by any act of the defendant. And we are all of opinion that he has not set forth any such ground of action as can be sustained upon any known principles of law. Vernon v. Keyes, 12 East, 632. Judgment arrested.1 1 [PROBLEMS: The plaintiff was under contract with a third person, a manufacturing corporation, to buy its goods, and depended for its business on the delivery of the man 134. ST. JOHN v. MAYOR, ALDERMEN, AND COMMONALTY OF THE CITY OF NEW YORK SUPREME COURT OF NEW YORK. 1856 13 How. Pr. 527 NEW YORK, General Term, Dec., 1856. Present, DUER, BOSWORTH, and WOODRUFF, Justices. Motion by plaintiff for judgment on a verdict subject to the opinion of the Court. M. G. B. Wilcoxson, for defendants. A. J. Willard, for plaintiff. By the Court WOODRUFF, Justice. The complaint herein avers, that the plaintiff is the occupant of certain premises situated upon Catharine slip, in this city, used as a refectory and lodging-house. That the premises are situated directly opposite to a public market, and near to a public ferry, and that the street has been and was a great public thoroughfare. That the prosecution of the plaintiff's business, and the public health and convenience required that the said street should be kept clear and free of and from all permanent obstructions of every kind. The complaint then proceeds to charge the defendants with having erected, or caused, or permitted, or ordered and directed to be built upon and about the sidewalk and street, adjoining the plaintiff's premises, divers stalls for the sale of meat, vegetables, and other articles usually sold at market, amounting to, being, and constituting an appropriation of the public street, to the plaintiff's injury, &c. It states the continuance of those stalls, and their use for the purposes aforesaid, by various persons, from June the 29th to September the 25th, 1854. That the effect was to obstruct the sidewalk, render the street inconvenient for use, collect around the plaintiff's premises garbage and filth, offensive and injurious, &c., and in other ways stated, interfering with, ufactured goods under that contract. The defendant intentionally destroyed the machinery, etc., of the factory, so that no goods could be delivered, and the plaintiff lost the profits from the sales. May the plaintiff recover from the defendant? (1870, Dale v. Grant, 34 N. J. L. 142.) The plaintiff had a statutory lien for $270, for money advanced, on all the cotton-crop of K. Three bales were made by K. The defendant, knowing this, induced K. to bring the cotton by night to the defendant's premises, and the defendant then took the cotton out of the county, so that the lien could no longer attach. The plaintiff thus lost the means of collecting the debt from K. Has he an action on the case for this damage? (1895, Michalson v. All, 43 S. C. 459, 21 S. E. 323.) NOTES: "Aiding or inducing debtor to avoid payment of judgment." (H. L. R., X, 519.) For the principles which may excuse persuasion to a breach of contract or other harm of this sort, see Book III, Title C, Sub-title (III).] suspending, interrupting,. and obstructing the due prosecution of the plaintiff's business by keeping away his patrons and visitors, &c., whereby he lost gains, profits, &c., and is damnified to the amount of two thousand dollars. The defendants answer by a general denial of all the plaintiff's allegations. Upon the trial, the jury were instructed, unqualifiedly, in these terms: "The plaintiff is entitled to recover, and you have only to assess the damages." The defendants having put in issue all the allegations in the plaintiff's complaint, the latter was bound, in order to entitle himself to such an instruction, to establish by evidence, uncontroverted, and admitting of no unreasonable doubt, every fact essential to his right to recover. We think the case, as disclosed by the evidence, did not warrant any such peremptory direction. . . . In regard to the ruling on the trial, in receiving evidence to prove the plaintiff's damages, there was no error. If the defendants are liable at all, so far as they are liable they are bound to recompense the plaintiff for the damages unnecessarily produced by their acts under the views above suggested. It is not denied that loss of custom is the proper ground of recovery. To prove this was the object and direct tendency of the evidence; the plaintiff showed the actual receipts of his hotel for a year or more, previous to the obstruction complained of, the actual daily receipts during the continuance of the obstruction, and again the actual daily receipts for some months after the obstruction was removed. This furnished the means of computation, and of satisfactorily ascertaining the diminution of receipts. He also showed that the expenses were in the same, or about the same ratio to the receipts during the whole period. When it is borne in mind that the defendant kept a refectory and lodging-house for resort of daily visitors for their various meals, and of transient persons for their lodgings, it is difficult to suggest any other mode of ascertaining the effect upon the plaintiff's business than this. To say that he must prove what persons were prevented visiting his house, and what meals they would have taken and paid for, is to suggest a mode of proof obviously impracticable; and if it was done it would still leave the same inquiry, what would have been the profits upon the meals they took and paid for? which is now objected to. The loss of custom, and the consequent loss of profits, is the very matter to be recompensed in this action; and the cases to which we are referred, in which loss of profits (it is said) cannot be recovered for, are not analogous. . . To illustrate this precise case, suppose A. had, on a given day, by some wrongful means, prevented any customer visiting the plaintiff's house, can it be doubted that in an action for the consequential damages, he would be liable for the loss sustained by the plaintiff thereby? I think not; and the mode of proving the loss would be just the one adopted on the present trial. . . . Upon the ground first suggested, a new trial must be ordered. Costs to abide the event of the suit. 135. SHAW v. SOUTHERN PACIFIC RAILROAD COMPANY SUPREME COURT OF CALIFORNIA. 157 Cal. 240, 107 Pac. 108 1910 APPEAL from the Superior Court of Tulare County - W. B. Wallace, Judge. Power & McFadzean, for appellants. Lamberson & Lamberson and H. T. Miller, for respondent. SHAW, J. This is an action for damages for bodily injuries to the plaintiff, alleged to have been caused by the negligence of the defendants. The defendants appeal from the judgment and from an order denying their motion for a new trial. The complaint alleges that by reason of the improper and negligent operation of its cars by the employees of the defendants, while the plaintiff was lawfully in one of its freight cars occupied in loading the same with boxes of grapes, the said boxes were caused to fall upon the plaintiff, "crushing, bruising, and wounding him," and that "by reason of said injuries plaintiff has become and is unable to do or perform any labor, and has become sick, bruised, sore, and disabled, and has suffered and is now suffering great bodily and physical pain, and has been permanently crippled and will continue to suffer from said injuries during the remainder of his lifetime." The damages thus caused are alleged to be in the sum of ten thousand dollars. Upon the trial the plaintiff testified that before the accident his physical condition was good and that he was able to do the work that he was engaged in doing, and all parts of it. Over the objection of the defendants he was then permitted to testify that his business was that of loading railroad cars with fruit, doing the work by contract on a large scale and having from ten to twenty-five men in his service, that he was a good hand at the work, that prior to the injury he was able to give his full time to the work and to do all parts of it himself, and made from $150 to $300 a month on his contracts, that after the injury he did not make any money out of it because he was unable to superintend it correctly and do the work, that he was now working on a salary of from $80 to $100 a month, and that if he was able to perform labor as before he could get a larger salary. 1. If this evidence had been allowed to go to the jury for the purpose of establishing, as the measure of the damages to the plaintiff, the loss of the profits he would have made if he had continued in the business in which he was engaged prior to the injury, it would have been outside of the issues. A loss of profits does not always result from such an injury. Damages from such loss of profits are special in their nature, and the facts must be particularly alleged in order to admit evidence thereof and justify a recovery therefor. (Treadwell v. Whit |