INTRODUCTION.

THE only work which our libraries contain on the subject of the Rule or Measure of Damages, is that by Sayer, (a) published in the last century; it covers, however, but a very small portion of the ground now embraced by this branch of the law, and is of scarcely any value to the American student. (b) No serious attempt seems, indeed, to have been made to reduce the rule of damages to principle, till a comparatively recent period. Lord Kaims says, in his Principles of Equity, "In the English

(a) The Law of Damages, by Joseph Sayer, Serjeant at Law, London, 1770.

This was strictly true at the time of the publication of the first edition of this work, in 1847. Since then, more attention appears to have been paid to the subject. Mr. Herbert Broom's highly valuable "Commentaries on the Common Law," published in 1855, contain two lucid and comprehensive chapters on the measure of damages in actions of contract and actions of tort; and in 1856, an entire English "Treatise on the Law of Damages" was published by John D. Mayne, Esq., of the Inner. Temple. This latter work has been republished in this country, in volume 92 of the Philadelphia Law Library, and fills about three hundred pages in the American reprint.

The

scope of the work embraces the measure of damages, the mode in which they are assessed and reviewed, the practice of

granting new trials, the law of set-off, compensation under the Lands Clauses Act, &c. This valuable treatise was prepared, of course, chiefly with reference to use in England; and appears to be a very faithful compilation of the English cases. It does not, however, attempt to present fully our American law on the subject; the learned author saying very frankly in his preface, "I have only resorted to American decisions where none of our own were in point." Mr. Mayne's work is clear and well arranged, and will undoubtedly be of great utility to the English practitioner.

(b) The second volume of Mr. Greenleaf's excellent work on Evidence, p. 209, contains a chapter on Damages, in which will be found far the best view of the subject that has ever yet been taken; but the space allotted to it forbade anything but a rapid and general survey.

courts of common law, there is no accurate distinction made between damage certain and uncertain. Damages are taxed by the jury, who give such damages as, in conscience, they think sufficient to make up the loss, without regarding any precise rule." (c) This was written less than a century ago. In an action for an escape, tried in 1776, Lord Ch. J. Wilmot said, "In actions on the case, the damages are totally uncertain and at large." (d) It is almost superfluous to say, that no such arbitrary discretion is now tolerated, except in a very limited class of cases, if, indeed, it can be properly said to exist at all. (e)

The tribunals of justice, both in England and America, have for some time assiduously labored to reduce this branch of [4] our science to fixed rules; and in the present condition of our jurisprudence it may be considered surprising that the subject has not received more attention from our text-writers.

The amount of damages, or, in other words, the pecuniary compensation awarded by tribunals of justice, in the widest acceptation of the term embraces almost the whole field of legal redress; and a treatise on the subject of the rules which govern the amount of damages, if considered in their largest and most general sense, would include nearly the entire philosophy of the law. I use here the term Law, in contradistinction to Equity. In taking a broad and general view of the matter of damages, we should necessarily be led to consider questions which lie at the very basis of our system of jurisprudence: to what extent compensation ought on principle to be carried; whether full and complete remuneration should be provided for every case of civil injury; or whether, as now, the reparation should be confined within much narrower limits. Again, for what particular wrongs reparation should be provided. Should the crime of seduction be punished by a civil action founded on a fiction of service? Should the injured husband have compensation in an action for criminal conversation? In what cases should redress be furnished for slanderous or libelous publications? Ought the malicious refusal to fulfill contracts for the mere payment of money, be more

(c) 2d edition, 1767, p. 78, in notes. (d) Ravenscroft v. Eyles, 2 Wils. 295. (e) "It is desirable," says the Supreme Court of Massachusetts, "to have as definite and precise rules upon the subject of damages as are practicable."-Batchelder v. Sturgis, 3 Cush, 201. "A proper ad

ministration of justice," says the Supreme Court of Louisiana, "requires that the rules established by law for the assessment of damages, should be adhered to." -Arrowsmith v. Gordon, 3 La. Ann. R.

105.