we have had so frequently to refer in these pages-that the measure of damages is a matter of law to be decided by the court; and that whenever it shall appear that the jury have disregarded the instructions of the bench in this respect, the verdict will not be permitted to stand.

CONCLUSION.

We have in the preceding pages taken a survey of the subject of compensation as awarded by the legal tribunals known to English and American jurisprudence. But much of the great demesne of justice still remains unexplored. The courts of admiralty, of narrow jurisdiction but broad and liberal doctrines, and the courts of equity, with their vigorous and complete specific performance, have not been even touched in these pages. (a)

[606] We have here only examined the subject of redress as awarded by the courts of law, or, as it may strictly be termed, legal relief; and the general result of our inquiry will be, I think, that the compensation obtained by the process of litigation, is partial and irregular. Its partial or incomplete character arises from the imperfect nature of all human administration, and the impossibility to do more than approach correct results. Tribunals able to carry their inquiry beyond the reach of our investigation, to scan the motive of each act, to determine how much is due to malice, how much to neglect, and how much to honest incapacity, would be alone fit to make complete compensation in each particular instance. As our jurisprudence is administered, we must content ourselves with dividing the loss between the contending parties.

The irregularity of legal relief is a very different matter. This arises mainly, as it appears to me, from the technical character of our forms of action; and would be removed by their removal. When there shall cease to be two actions against an agent, one on the case and the other on the contract; when it shall no longer be possible to bring trover, trespass, or assumpsit,

upon the same facts; when the suit for mesne profits shall [607] cease to be based on the fiction of a forcible entry; when the action for seduction shall no longer be grounded on a pretense of service,-when anomalies of this kind shall have disappeared, then, and not till then, will it be easy to reduce the subject of relief to order, system, and harmony.

84; fr. 91, § 3; fr. 113, 114, D. 45, 1; fr. 3, D. 13, 3; § 4, J. 2, 20; fr. 71, § 3, D. 30; fr. 1, pr. D. 19, 1; fr. 13, § 1; fr. 15, § 10, D. 42, 1; const. 4, C. 4, 49.

"These principles are retained in the canon law, cap. 2, x., 3, 21, (Homo liber pro debito non tenetur (i, e, non pignoratur), etsi res defuerint quæ possint pro debito addici'); and so, too, with only a few modifications, in the French law. C. Civ., art. 1142-45, art. 1146, seq.; C. Proc. art. 552, 780-805; C. Com. art. 636-38.

"According the German law, on the other hand, the debtor may not only be compelled in case of a negative act (an omission promised or otherwise due), by means of fines gradually increased,-but the German practice applies a direct or absolute compulsion by means of personal arrest, civil imprisonment, military watch placed in his dwelling, by taking

him to a work-house, and even by whipping; also in all those cases where the specific performance of any obligation whatever is refused by the debtor, and cannot be made at his expense by another person; or where the debtor fails to perform merely from lack of of good-will. Yet, from what has been said above, it will be evident that it is altogether without any foundation that some older and later jurists have made the assertion, that the application of absolute compulsion to enforce any obligation, whether it have for its object a doing or giving, could be justified by the later Roman law." I am indebted for this note to the learning and courtesy of Dr. Kauffman. As to where compensation and damages are decreed in equity, see 2 Story's Equity Jurisprudence, ch. xix., § 794.

I am happy to find these views sustained by the opinion of a very accomplished judge, delivered in New York since the abolition of the English system of pleading in that State: "The arbitrary distinctions which were permitted to flow from a difference in the forms of action are abolished, and the time has arrived when general and uniform rules upon the subject of damages, rules so just and comprehensive as to be susceptible of universal application, may be adopted." (b)

There are, however, other irregularities entirely independent of the forms of action. Such are those connected with the questions, whether actual injury must in all cases be proved, or whether a suit at law may be brought, quia timet, as by a surety, who has given his note for the principal's debt; the discrepancy between suits on warranties of chattels, where the price paid is only evidence of the value, and on sales of land, where the consideration money is the absolute limit of recovery; the contradiction between the rule in trover, where the value is taken at the time of the conversion, and on sales of chattels, where, if the price is paid, the damages are estimated at the day of trial. These difficulties, and others which we have noticed in the course of the preceding pages, can only be removed either by decisions pronounced after a careful survey of the whole subject, and with a view to a complete classification of this branch of the law; or by legislative interference.

The importance of fixed rules in this branch of jurisprudence, cannot be overrated. Where the law and the facts are disposed of by the same persons, as under the civil law, no particular evil, perhaps, results from the exercise of an arbitrary authority over the subject of compensation. But where, as with us, the cognizance of matters of fact is separated from that of the questions of law, and where the arbiters of the former are declared incompetent to pass upon the latter,-to give them an uncontrolled discretion over the amount of relief would lead to incalculable [608] mischief and confusion. (c) "It is desirable," say the Supreme Court of Massachusetts, "to have as definite and precise rules on the subject of damages as are practicable." (d) “A proper administration of justice," says the Supreme Court of

(6) Suydam v. Jenkins, 3 Sandf., 646, per Duer, J.

(c) For a very able discussion of the relative powers and duties of court and

jury under our system, see Commonwealth v. Porter, 10 Metcalf, 263, and many cases there cited.

(d) Batchelder v. Sturgis, 3 Cush., 201.

Louisiana, "requires that the rules established by law for the assessment of damages should be adhered to.” (e) The judicial authority to settle legal questions would be utterly nugatory, if the amount of compensation were a mere matter of arbitrary discretion with the jury; and hence, the settled tendency of our law, as well as of all sound reasoning on the subject, is to reduce the measure of damages as far as possible to fixed legal rules, excepting only in those cases of flagrant outrage where the law steps in not merely to compensate but to punish.

And here I cannot better close this volume than by adopting the words used by old Molinæus, in terminating his discussion of the same subject: "Jam tempus est manum tollere de tabula, et reliqua quæ plura occurrunt, suis locis reservando, finem huic syntagmati imponere." (ƒ)

(e) Arrowsmith v. Gordon, 3 La. Ann. R., 105. (ƒ) Dumoulin, de Eo quod Int., § 219.