given as an indemnity to the injured party for the loss she has sustained, and has been always held to embrace the injury to the feelings, affections, and wounded pride, as well as the loss of marriage. (p) From the nature of the case, it has been found impossible to fix the amount of compensation by any precise rule; and, as in tort, the measure of damages is a question for the sound discretion of the jury in each particular instance, (q) subject, of course, to the general restriction that a verdict influenced by prejudice, passion, or corruption, will not be allowed to stand.

Beyond this the power of the court is limited, as in cases of tort, almost exclusively to questions arising on the admissibility of evidence when offered by way of enhancing or mitigating damages. So where it appears that the promise was made by the defendant with a view to seduce the plaintiff, and that the defendant thereby did in fact seduce the plaintiff, this will be allowed to go to the jury in aggravation. (r) (1)

So also, it is held that the defendant may show in mitigation of damages, the licentious conduct of the plaintiff, and her general character as to sobriety or virtue, without any limitation of time whatever. (8)

It is also settled that, in this action, dissolute conduct on the part of the female after the promise (or before if unknown), discharges the contract altogether. Indecent conduct before the promise if unknown to the defendant, or after the promise, goes in mitigation of damages. (t) No evidence can be given of any fact having a tendency to aggravate the damages, which has occurred after the commencement of the suit. So in an action for a breach of promise, an indecent and insulting letter written

(p) Wells v. Padgett, 8 Barb. S. C. R.,

323.

(q) Southard v. Rexford, 6 Cowen, 254. Paul v. Frazer, 3 Mass., 73; Green v. Spencer, 3 Miss., 318; Hill v. Maupin, id., 323; Buck v. Strain, 2 Bibb., 341; Whalen v. Layman, 2 Blackf., 194; Wells v. Padgett, Barb. S. C. R., 323. The contrary has been held in Pennsylvania, Weaver v. Bachert, 2 Barr., 80. But

there the improper, cruel, and indecent conduct of the defendant will go to aggravate the damages. Baldy v. Stratton, 11 Penn. R., 316.

(8) Johnson v. Caulkins, 1 J. C., 116. (Boynton v. Kellog, 8 Mass., 189; Willard v. Hone, 7 Cowen, 22; Palmer v. Andrews, 7 Wend., 142; Irving v. Greenwood, 11 E. C. L., 412; Capehart v. Carradine, 4 Strobhart, 42.

King v. Kersey, 2 Ind., 402; Tubbs

(1) Wells v. Padgett, 8 Barb. (N. Y.), 323; v. Van Kleek, 12 Ib., 446; Coil v. Wallace, 4 Zabr. (N. J.), 291; Roper v. Clay, 18 Mo., 383; White v. Campbell, 18 Gratt. (Va.), 573.

by defendant to the plaintiff after suit brought, cannot [370] be proved. (u)

In regard to the hire of slaves, it has been held in Arkansas, as the value of slave hire fluctuates, that in an action for the hire of slaves for one year it is erroneous to instruct the jury that what the defendant paid the year previous is the correct criterion of their value, and that what such slaves hired for during the year in controversy would be the measure of relief. (v) Where slaves are hired for a specific time and die within the period, but without fault of the hirer, the better opinion seems to be that the hirer is only liable for the time up to the negro's death, (w) though a contrary opinion has been in one case intimated.

The Common Law Action of Covenant. Having thus disposed of the great action of assumpsit, we now turn to those cases which are embraced in that of covenant. This is the remedy provided by our ancient jurisprudence for the recovery of damages upon the breach of a covenant, or contract under seal. The addition of a seal to the signature of the contracting parties is pregnant with important consequences, both in regard to the form of the action, and in many instances to the substantial rights of the parties; but it has no effect whatever on the rule of damages, except in regard to that class of cases embracing real covenants, which we have already considered. If the contract relate to personal property, the measure of damages is the same whether it be sealed or unsealed, and, consequently, whether the remedy be by covenant or assumpsit.

The questions, therefore, that present themselves in actions of covenant, are usually identical with those which we have been considering in assumpsit. There are cases, however, coming up in this form of action, which cannot arise in any [371] other, inasmuch as the instruments out of which they grow

(u) Greenleaf v. McColley, 14 N. H., 804. But in seduction, where the child was born after the action was commenced, damages were given for the expense consequent thereon. Stiles v. Telford, 10 Wend., 338. In the one case, however, the court took into view what was the direct and natural result of the illegal act. In the other it excluded the consideration of a new tort wholly distinct and independent from the original cause of action.

26.

(v) Adamson v. Adamson, 4 English,

(w) In Virginia, George v. Elliot, 2 Hen. & Munf., 6. In North Carolina, Williams v. Holcomb, 1 N. C. L. R, 365. In South Carolina, Bacot v. Parnell, 2 Bailey, 424; and in Arkansas, Collins v. Woodruff, 4 English, 463. But in Kentucky they have held the owner liable for the whole term. Harrison v. Murrell, 5 Mon., 359; Redding v. Hall, 1 Bibb., 536.

are always executed under seal. (1) Such are assignments of judgments, charter parties, and leases for terms of years.

In the case of an assignment of a judgment containing a warranty that the sum specified remained due and unpaid, when in fact no judgment had ever been entered up, the Supreme Court of New York held, in an action of covenant, that the measure of damages was not the amount recovered as stated in the assignment of the judgment, but the amount of property owned by the judgment debtor, and which might have been taken in execution intermediate the time of assignment and the commencement of the suit. (a) It is worthy of notice here, that the amount of consideration or value paid did not appear on the face of the assignment, and that it is not stated in the report whether the evidence in regard to the amount of property owned by the alleged judgment debtor came from the plaintiff or defendant; although, as the declaration is stated to have averred that the plaintiff had property enough to satisfy the demand, the pleader seems to have thought that, regularly, it should have come from the plaintiff. It would seem that, primâ facie, either the amount appearing to have been paid for the judgment, or the amount recovered by it, should be the measure of damages. If the analogy of conveyances of real estate were followed, then the consideration paid would govern. If the assignment were treated as a chattel, then the price paid would again be the rule, subject to the plaintiff's right to show that the whole amount could have been recovered, and then for its value beyond the price; and also subject to the further right of the defendant to show that, owing to the judgment debtor's insolvency, it was worthless. If the analogy in the case of sheriffs were adopted, then the amount recovered by the

(x) Jansen v. Ball, 6 Cow., 628.

(1) In a grant of land there was a covenant that the defendants should sink upon the demised premises a pit to the depth of 130 yards in search of coal, and, in case a marketable vein should be reached, pay to plaintiff £2,500. In an action by plaintiff for breach of this covenant, evidence being given to show that if the defendants had sunk the pit, marketable coal might have been found, it was held, that the plaintiff was entitled to more than nominal damages, and that the true measure of damage was the amount which he had lost by being deprived of the opportunity of finding marketable coal. Pell v. Shearman, 32 Eng. L. & E., 496. See the measure of damages under the Mexican laws, in case of breach of covenant, stated in Garrett v. Gaines, 6 Tex., 435.

judgment would be the prima facie measure, subject to the defendant's right to reduce the sum by showing that, owing to the judgment debtor's circumstances, its whole amount could not be collected. I make these remarks as serving to illustrate the contradictions and perplexity that pervade the whole subject; indeed, we are sometimes induced to say, with Huberus, [372] "Valde lubrica est hujus rei praxis, et tantum non arbitraria." (y)

Charter parties also being under seal, are to be included under this head; and we have already considered the measure of damages in actions of this kind. (2)

Leases, being also usually sealed instruments, generally find their appropriate remedy in this action; but the measure of damages in these cases has been already partially discussed elsewhere. (a)

Having thus examined the rules of damages in actions on contracts where the measure of remuneration is not fixed by the parties, we shall, after treating of the subject of Interest, turn to those cases where, either by a penalty or by a more precise stipulation, the parties endeavor to determine the amount of compensation which shall be recoverable on a breach of the agreement.

(y) Huber Præl. Jur., lib. 22, tit. 1, vol. iii., 89.

(z) Wheelwright v. Beers, 2 Hall, 382 and 391. Ante, 371, et seq.

(a) Ante, 201.

CHAPTER XV.

OF INTEREST WITH REFERENCE TO DAMAGES.

Interest first given in England by Statute-When allowed as matter of Law-When by the Jury in their discretion-Allowed where a principal sum is to be paid at a fixed time-Where an agreement can be inferred-Not allowed where the demand is unliquidated-Conflict between English and American decisions-Money improperly detained-Cash advances Special cases-Compound Interest-Cash advances Discretion of the Jury-In Trover and Trespass-Interest on ErrorOn Judgment-When Principal has been paid.

BEFORE taking leave of those contracts in which the damages are unliquidated, we have to examine the cases in which Interest is allowed as damages. We have already seen (b) that in actions brought on promises to pay a liquidated sum of money, as on promissory notes or bills, where no question arises as to the currency or rate of exchange, the rule of damages is fixed and arbitrary, being identical with the rate of legal interest. We are now considering a different and more complex class of agreements. In these, the question of interest often depends on the true construction of the contract, or the just inference to be drawn from the evidence as to the intention of the parties; and when this is the case, it does not properly come within the scope of this treatise. The allowance or infliction of interest often, however, presents itself entirely disconnected from any question of contract; and in this aspect the subject cannot be omitted in any work which treats of compensation; for it is to be observed generally, to use the language of Lord Kenyon, (c) " that where interest is intended to be given, it forms part of the damages assessed by the

(b) Ante, Ch. VIIL, 246.

(c) Lee v. Lingard, 1 East, 401.