severely punished than honest incapacity? Should there be any reparation for a frivolous and vexatious suit beyond the costs, or should further redress, as now, be confined to cases of malicious prosecution? Should a merely false representation as to the credit of a third party, be allowed to be made with impunity, or should it be necessary, as now, to show also a fraudulent intent? In what cases should provision be made for the counsel fees of the prevailing party?

These and similar inquiries would, as I say, embrace almost the whole philosophy of legal relief. But I have by no means in this volume intended to occupy ground so extensive, or to discuss questions so theoretical. My aim has been more limited; and if much humbler, at least I hope more practically useful.

My purpose has been to examine those cases only, where a wrong having been done, or, in technical language, a right of action existing, the question remains, What is the amount [5] of compensation to be awarded? In other words, what is the rule or measure of damages in courts of law?

In doing this, my principal purpose has been, to present the law as it is; while, at the same time, I have thought it my duty to exhibit the contradictions and discrepancies which exist in this, as indeed in almost every part of our jurisprudence; and which must exist, so long as those changes take place in the administration of justice, which sometimes furnish a theme for well-grounded censure, but more frequently exhibit its capacity of self-adaptation to the perpetual fluctuations of our social and commercial condition.

In preparing the work, my chief embarrassment has arisen from the difficulty of making a proper and scientific division of the subject. The whole arrangement of our Anglo-American jurisprudence, as originally created in the mother country and adopted here, the primary distinction between law and equity, and the subordinate divisions of the old common-law forms of action, are so purely arbitrary and technical, that it is almost impossible to prepare a treatise on a subject so extensive as that of the measure of damages, which shall be at once useful and logically arranged. To be useful, it must, to a very considerable extent at all events, conform to those arbitrary divisions and formulæ which, however much modified both in England and in America by recent legislation, have still left a deep perhaps a permanent impress on our whole jurisprudence, although they

are now generally recognized to be equally irreconcilable with scientific analysis or logical order. Conscious of the difficulty, yet seeing no mode to avoid it altogether, I have endeavored, as far as possible, to make the treatment of my subject correspond with that which Blackstone originally adopted in his admirable Commentaries, and which subsequent writers on our law have generally followed.

I have again been embarrassed by the extent of the subject. There is a very evident distinction between the cause of action and the measure of damages; in other words, between the right of recovery and the amount of compensation; and yet as most actions at law result in damages, it is by no means easy in all cases to define what properly belongs to each. "The rules on the subject of damages," says one of the great French civilians, with his usual clearness, "regard either whether they are due at all, or of what they consist. The first question is one of law, which depends on whether the party charged is liable or not.

This being determined, the second question remains; [6] namely, to discriminate, with regard to the damages sus

tained, between that portion which is to be made good and that which is to be borne by the sufferer." (f)

This division, very clear and simple in theory, it will not always be found easy to reduce to practice.

Another source of difficulty has arisen from the fact that some parts of the subject have been already treated with great fullness and ability. Benecke's and Stevens' works on indemnity and average, exhaust that branch of the law of damages which relates to insurance. The various books on set-off, among which is Mr. Barbour's valuable treatise, and the late Mr. Graham's work on New Trials, equally cover the whole subject so far as they go. And where I have found the ground thus occupied, I have contented myself with a very general survey.

In preparing the work I have endeavored, as far as possible, to extract some general and reasonable rule, from cases often

(f) "Toutes les regles de la matiere des dommages et interêts regardent, ou la question de scavoir s'il en est dû, ou celle de scavoir en quoi ils consistent. La question s'il est dû des dommages et interéts, est toujours une question de droit, qui depend de scavoir si celui à qui on les impute doit en etre tenu. * * Cette premiere question, de scavoir s'il est dû

des dommages et interêts, étant décidée, c'en est une seconde, de scavoir en quoi ils consistent, c'est à dire, de discerner dans toute l'étendue du dommage qui est arrivé ce qui doit en etre imputé à celui qui est obligé de dedommager, et ce qui ne doit pas lui etre imputé."-Domat, Loix Civiles, Lec. III., Tit. 5, Sec. II., § 2.

conflicting and discrepant; but as the subject, in any connected form, is almost entirely new, I have thought that I should best serve the bar, and at the same time most efficiently contribute to a generalization of the whole matter, by giving the decisions sufficiently at large to show the principle which they seek to establish, instead of contenting myself with a brief reference. This course may undoubtedly, in some cases, lead to prolixity; but it seems to me to be attended by more than counter-balancing benefits. Our law is so truly to be found in our reports, that it seems to me always better to give the very words of judicial opinions, than to attempt to put them in different language. In regard to the matter of damages, too, this course has seemed to me particularly expedient. It is in the course of a trial, that questions of this class generally present themselves; and while I have endeavored to clear the way to a correct appreciation of the [7] whole subject, my especial object has been to make a work which should be practically useful at nisi prius.

I have found another reason for this course, in the unsettled state of this branch of the law. The contradictions are so numerous, the discrepancies so great, and the subject, in a connected. shape, so new, that I have hesitated to affirm any position without citing my authority at large. And in collating the decisions, I have found so much variance of opinion in the numerous tribunals which follow the course of the common law, that it is with great difficulty, in many cases, that I have been able to do more than state the doubts as they exist.

I have endeavored to point out the analogies of this branch of the science, not only in our own system, but by going back to the great original of jurisprudence, the civil law, and also by reference to the more eminent judicial writers of France; and I can only wish that I had leisure to make this part of the work more full and complete. I have had constantly in my mind the precept and example of the late

(g) "There is a remarkable difference, in the manner of treating juridical subjects, between the foreign and the English jurists. The former almost universally discuss every subject with an elaborate theoretical fullness and accuracy, and ascend to the elementary principles of each particular branch of the science. The latter, with a few exceptions, write practical treatises, .which contain little more than a collection of the principles

lamented Story; (g) but no one

laid down in the adjudged cases, with scarcely an attempt to illustrate them by any general reasoning, or even to follow them out into collateral consequences. In short, these treatises are little more than full indexes to the reports, arranged under the appropriate heads; and the materials are often tied together by very slender threads of connection. They are better adapted to those to whom the science is familiar, than to instruct others

can be more sensible than myself of the immense disparity between the models of the master and the efforts of the pupil.

I suggest these various considerations by way of an anticipated excuse for the many errors and imperfections which I am but too sensible this work must present; and I throw myself upon the

candid and indulgent consideration of a very learned and [8] able profession. (h) I do not at all flatter myself with the hope of complete success. But if this volume tend in any degree to reduce to greater certainty this department of our jurisprudence to stimulate the devotion, or to abridge the toil of those who painfully devote themselves to the great science of justice-my labor will be abundantly repaid.

in its elements. It appears to me that the union of these two plans would be a great improvement in our law treatises, and would afford no inconsiderable assistance to students in mastering the higher branches of their profession."-Story, Pref. to Com. on Bailments.

(h) A serious difficulty has arisen from the fact that the digests of the reports afford but little aid. There is, I believe, in no one of them any such head as "Rule or Measure of Damages." Wharton's Pennsylvania Digest (ed. 1836), has

CHAPTER I.

GENERAL VIEW OF THE SUBJECT.

Distinction between Common Law and Equity, as to the relief given.—Origin of damages. Different principles on which different systems of jurisprudence act in awarding damages.-That of the English and American systems is Compensation.—Nature and extent of this compensation generally.-Difficulties arising from the Forms of action.

THE subjects of legal investigation, when practically considered, generally resolve themselves into three great heads of inquiry; the right of the parties, or the cause of action, the forms of proceeding, and the mode of relief. It is of the last only of these three divisions, that these pages are intended to treat; nor are they intended to discuss the whole topic of redress; on the contrary, they will be confined to a single head of this extensive branch.

The student of English jurisprudence can never master the subject of which I am about to write, nor, indeed, scarcely any other of our complicated science, until he has completely familiarized himself with the fundamental division and distinction between Law and EQUITY. There is, indeed, nothing more curious in legal science, hardly any thing more interesting in the history of the human mind, than to trace the processes by which the two-fold fabric of English jurisprudence gradually arose. How the COMMON LAW, springing from the ancient usages of the Teutonic stock, at once identified itself with the interests of the great feudal proprietors of the soil, and fashioned their real law; and at the same time called to its aid the Trial by Jury, and thus endeared itself to the popular heart; while, on the other hand, the Civil Law, under the name of Equrry, emerging from the