So in Maine, in a suit growing out of an attachment, the goods having been delivered to a receiptor and he having failed to perform his duty, it was said that if there was a good cause of action, at the time of the commencement of the suit, but the right of action is lost by a neglect to take the necessary steps to preserve the attachment, nominal damages may be recovered. (2) So in the same State, in an action on a bond given to procure the release of a debtor from arrest, there being no evidence of the loss sustained by the plaintiff, it was held that the execution could issue for nominal damages only. (a)

So in Mississippi, in an action on a covenant to transfer to the plaintiff the defendant's title to a slave, it was held that the measure of damage was not the value of the slave, but of the defendant's title; and that appearing to be defective, it was considered a case for nominal damages. (b) So in Louisiana, in a suit against the sureties on a sequestration bond. (c)

But in a somewhat peculiar case, in an action of debt where a nonsuit had been taken, although the Supreme Court of New York were satisfied that the verdict should have been for the plaintiff, yet as no damages were shown, nor any mode of arriv-. ing at any, the court refused to set aside the nonsuit and grant a new trial in order to give the plaintiff an opportunity to obtain nominal damages. (d) (1)

The importance of the principle of nominal damages is, as has been said, mainly its effect upon the costs of the suit. (2)

(z) Moulton v. Chapin, 28 Maine, 505. (a) Waldron v. Berry, 22 Maine, 486. (b) Whitehead v. Dunbar, 11 Smedes & Marsh., 98.

(c) Clark v. Scott, 2 La. Ann. R., 907. (d) Brantingham v. Fay, 1 J. Cases,

255.

has not been required to settle his account in the entitled to recover nominal damages, and no more. 306.

probate court, the prosecutor is Probate Court v. Slason, 23 Vt.,

Upon a covenant to an attorney to pay him a reasonable fee for defending the defendant on a criminal charge, nothing more can be recovered than nominal damages, unless it be averred that he did defend, or special damages be alleged and admitted or proved. Wilson v. Barnes, 14 B. Monr. (Ky.), 330.

(1) A motion for nonsuit should be denied where the plaintiff is entitled to nominal damages. Quin v. Moore, 15 N. Y. (1 E. P. Smith) R., 432. But a new trial will not be granted to the plaintiff where, upon the whole case presented, it appears that he is entitled to nominal damages only. Jennings v. Loring, 5 Ind. R., 250; see also, Watson v. Hamilton, 6 Rich. (S. C.) Law, 75.

(2) In Admiralty, where costs are discretionary, the right to nominal damages seems to be regarded as less important than in the common-law courts; thus in

Thus, in Massachusetts, a plaintiff is entitled to full costs in personal actions, in which the title to real estate may be concerned, if he recover any sum less than twenty dollars. (e) Its practical results, therefore, can only be understood by a careful analysis of the statutes of costs, of the details of which, being matters of local legislation, this work cannot properly treat. [56] Where the action is brought to prevent trespasses, to

try titles to land, or to determine rights of any kind, it is very equitable that the party in the wrong should bear the expense of the controversy; but in most other cases, the rule of nominal damages, provided they carry costs, only tends to engender litigation. We shall have occasion hereafter to notice this more particularly; but it should be borne in mind, that the rule of nominal damages, unless carefully limited to cases where a right is necessarily litigated, results in gross injustice. It is of no consequence whether a claim to real or to personal property is in question, the defendant ought not to be charged with the costs of the proceeding, if the suit be either malicious or unnecessary. The law should hold out no inducement to useless or vindictive litigation. (ƒ)

(f) I am happy to find this language cited with approbation in Vermont, in Paul v. Slason, 22 Verm., 231, per Poland, J.

The case of Hall, App't, v. Ross, Resp't, 1 Dow, 201, presents, in a striking point of view, the difference between the Scotch and English law, on the subject of nominal damages. It was a suit growing out of a lease of certain salmon-fishing stations, which had been disturbed by the erection of a dock. In the Scotch court, the judges (fourteen in number) were equally divided. Of the seven who decided against the claim, four were satisfied that the appellant had sustained

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damage, but apparently thought the damage could not be ascertained; and judgment was given against the party claiming, with costs. The Lord President, however, said that in several actions usual in Scotland, they were under the necessity of "conjecturing the damages."

On appeal to the House of Lords, Lord Eldon said, "If, in England, a majority of the judges had been of opinion that some damages were due, their Lordships would never have heard of the decision being against the person who had made out his claim to damages. Too much might be given him, or too little; but he could never, under such circumstances, be dismissed out of court, with the additional loss of having to pay the expenses of the

Barnett v. Luther (1 Curtis' C. C. R., 434), Curtis, J., said, "If it were admitted that in an action at law a seaman could recover nominal damages for a blow inflicted by the master, it does not follow that the admiralty will award him nominal damages. At the common law, the prevailing party having a legal right to costs, which is of itself a substantial right, it is necessary to decide claims to nominal damages upon strict legal principles, even where nothing but a question of costs is involved. But in the Admiralty the costs are in the discretion of the court, and do not depend upon the question whether the libellant recovers one dollar or nothing."

Having thus stated the rule of damages where no actual loss is sustained, we now proceed to ascertain the extreme limits of legal relief where positive injury is done; and for that purpose shall 'next examine the subject of REMOTE AND CONSEQUENTIAL

DAMAGES.

suit. It might be very difficult to ascertain the amount of the damage; and in this country there were two modes of proceeding in such cases, viz.: to prove the amount by the testimony of competent witnesses; or, when there was no ground or criterion to estimate the damage, they were in the habit of giving nominal damages; but they never dis missed the claim altogether, when it

appeared that there was some damage." And the judgment was reversed, with instructions: First, that if damages had been sustained, compensation was due. Second, that the party should furnish further proof; and if not, that the court should ascertain the amount of damages by such other means as their practice should authorize, and then to do what was fit and just.

CHAPTER III.

REMOTE AND CONSEQUENTIAL DAMAGES.

No compensation allowed in damages, but for the direct and immediate consequences of the act complained of-French Law on this subject-Scotch Law-The Common Law-What are considered direct and immediate consequences-Loss of profits-As between principal and surety-Statutes-Counsel fees—Damages arising after suit brought-Prospective damages-Liability of grantees of franchises for consequential damages.

HAVING in the last chapter stated the measure of damages where no actual loss is sustained, I now proceed to exhibit the general rule which fixes the limit of compensation in cases where positive injury results from the alleged wrong. That rule is the one which prohibits any allowance for damages remotely resulting from the principal illegal act. Such damages are frequently termed remote damages, and sometimes consequential damages. These terms are not, however, necessarily synonymous, or to be indifferently used. All remote damages are consequential, but all consequential damages are by no means remote.

We shall have frequent occasion to notice the existence of this principle hereafter, when examining more minutely the rules of damages in particular cases; but it is proper before entering on that part of the subject, to have an idea of the general boundaries of this branch of our jurisprudence.

It has already been stated that the law does not aim at complete compensation for the injury sustained; that it seeks rather to divide than to satisfy the loss; and that in cases of contract, as well as of tort, where no question arises of fraud, malice, or oppression, the direct pecuniary damage with the costs of the litigation form the measure of relief. In other words, the law refuses to take into consideration any damages remotely [58] resulting from the act complained of. This proposition, or one correlative to it, is expressed in the maxim Causa proxi

ma, non remota, spectatur; or, in the language of Lord Bacon, "It were infinite for the law to judge the causes of causes, and their impulsion one on another. Therefore, it contenteth itself with the immediate cause, and judgeth of acts by that without looking to any further degree." (g) This general principle pervades the civil as well as the common law, and applies equally to cases of breach of contract, and of violation of duty; to all cases, in short, where no complaint is made of any deliberate intention to injure. In these latter cases we have seen that our law does not pause at the line of mere compensation, but proceeds to punish the offender.

The language, however, held on this subject, and the reasons assigned for the disregard of remote damages, are far from being uniform. In regard to contracts, it is sometimes said that the defendant shall be held liable for those damages only which both parties may be fairly supposed to have contemplated at the time they entered into the agreement, as likely to result from it; and this appears to be the rule adopted by the writers of the modern civil law. Thus Pothier (h) puts the case of an agreement for the sale of a horse, and failure to deliver. If in this instance horses have risen in price, the purchaser has a claim for what he has been obliged to give for a similar animal, over and above the price at which he was to have that of the seller; and this, in the language of the Roman Law, he terms the damages propter rem ipsam non habitam. But on the other hand, if the purchaser were a canon of the church, and by reason of the non-delivery of the horse could not arrive at his residence in season to receive his gros fruits (or tithes), the seller is not liable for the loss of those gros fruits, because this accident was not foreseen at the time of the contract.

So, in case of a letting of a house for a given term, say eighteen years, which the letter in good faith supposes his, and if at the end of ten or twelve years the lessee is evicted by the true owner, the lessor is liable for the damages resulting from the expense of moving, and the rise of the rent of similar tenements; these are propter rem ipsam non habitam. But he [59] is not liable for an injury done to a business established in the house by the lessee subsequent to the letting, nor for furniture injured in the removal; this is damage that could not have been contemplated at the time of the contract. But if, on the other

(g) Maxims of the Law, Regula 1.

(h) Traité des Obligations, Part I., ch. ii., art. iii., § 16, et seq.