great wreck of the Roman Empire, claimed for itself a jurisdiction which the cumbrous and artificial processes of its rival could not embrace, and by the mere force of its logical order, scientific analysis, and simple reason has succeeded in obtaining a hold on the legal organization and science of the world which bids fair, under one name or another, to end in an almost complete re-establishment of its ancient supremacy. But these are considerations of too general a nature to be here pursued further. Contenting myself with a cordial invitation to the student not to neglect these old mazes of our legal history, I confine my observations to matters of more immediate practical interest.

The relief afforded by a tribunal, may be either preventive or remedial. If remedial, it may again be either specific, or it may consist in the mere award of pecuniary remuneration. The common law, as it exists in England and as it was introduced into the United States, is generally remedial in character, and its remedies are of a pecuniary description. It has few preventive powers; it can rarely compel the performance of contracts specifically; its relief, for the most part, consists in the award of pecuniary damages. Whether it punishes wrongs, or remunerates for breach of contract, in either case its judgment simply makes compensation, by awarding a certain amount of money by way of damages to the sufferer. (2)

The rules which in this matter govern its action, i. e., the amount of compensation awarded by common-law trib[10] unals, or in other words the Measure of Damages, will be the subject of this treatise.

A mere enumeration of the forms of action and proceedings at common law, when we consider them in contradistinction to equitable relief, is sufficient to show that the powers of former tribunals are almost solely remedial, and confined, with few exceptions, to the infliction of pecuniary damages.

Equity operates by injunction; it restrains the aggressor from the contemplated violation of right; it gives specific relief by decreeing the very thing to be done which was agreed to be done; it compels the unwilling party to give testimony; it executes

(i) And all the questions growing out of these subjects are investigated in one and the same proceeding. "It is incident to every common-law complaint of injury and damage, that the existence of the injury, the right to compensation,

and the amount of damage alleged to have been sustained, are tried and decided in one proceeding and upon one trial.”— East and West India Docks v. Gattke, 15 Jur., 261.

trusts, expounds testaments, and adapts its plastic hand with ease to the varied wants and complaints of man in a state of society. But, as a general rule, it refrains from awarding pecuniary reparation for damage sustained. (5)

With the common law the case is very different. The end at which it arrives is, in almost all instances, one and the same; in the actions founded upon contract, account, assumpsit, covenant, debt, the only object of the plaintiff is to obtain, and the only power of the court is to make, a judgment awarding a certain amount of money, by way of redress for the breach of the agreement. In the case of an action brought for the breach of a contract for the payment of money only, a suit for damages does, indeed, as Lord Mansfield has observed, (k) from the nature of the case, become a suit for specific performance. (1) But this is almost the only instance where a suit at law compels the very thing to be done which the defendant agreed to do. In the actions of tort, case and trespass, trover, replevin and detinue, the rule is the same, with the exception that in the two latter the law makes a feeble and partial attempt to enforce the return of the specific chattels, for the taking or detention of which the suit is brought. To this general rule, however, there are some further exceptions, which must be borne in mind. In the [11] action of ejectment, and in the proceedings to recover dower, as well as in cases of nuisance by abating the grievance

(5) It is true, that a court of equity will sometimes give damages in lieu of the specific performance of a contract, but that is only, as a general rule, where it has obtained jurisdiction of the cause on other grounds.-Wiswall v. M'Gown, 2 Barb. S. C. R., 270.

(k) Robinson v. Bland, 2 Burr., 1077, 1086. Where assumpsit proceeds on a

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demand of money, it is in truth and substance, and so taken in some of the cases, a more special action of Debt; for where the demand is for the payment of a sum of money, it is a technical fiction to call the sum recovered Damages; it is the specific debt, and the jury give the specific thing demanded."-Lord Loughbor ough in Rudder v. Price, 1 H. Bl., 547.

(1) The contrary view is, however, entertained by many of the authorities. Thus, it is held in California, that the true theory of the recovery on a money demand is “not that the party recovers the particular note or chose in action, as is commonly imagined, but that he recovers damages for the non-performance of the contract." Guy v. Franklin, 5 Cal., 416. The distinction is not often presented in a way to involve any practical consequences; but in M'Lane v. Elmer (4 Ind. R., 239), a practical question turning on this distinction was raised. In that case the suit was on a note promising toʻpay $300, “without the benefit of the stay of execution." Judgment was rendered that the plaintiff recover, &c., and that defendant have no stay of execution. Held, on appeal, that the part of the judgment prohibiting stay of execution must be reversed. The court could not enforce the specific performance of the agreement, but could only award damages for the breach of it.

complained of, the common law gives a specific remedy. By the proceedings of quo warranto, mandamus, and prohibition, () and the great writ of habeas corpus also, these tribunals exercise powers very analogous to those of a court of equity. But of these, so far as they belong to our subject, more particularly hereafter.

Blackstone, in his Commentaries, ranks damages among that "species of property that is acquired and lost by suit and judg ment at law." "The primary right to a satisfaction for injuries, is given by the law of nature, and the suit is only the means of ascertaining and recovering that satisfaction." "The injured party has unquestionably a vague and indeterminate right to some damages or other, the instant he receives the injury; and the verdict of the jurors, and the judgment of the court thereupon, do not, in this case, so properly vest a new title in him, as fix and ascertain the old one. They do not give but define the right." (m)

In Robert Pilfold's case it is said, (n) "It is to be known that this word Damna is taken in the law in two several significations, the one properly and generally, the other relative and stricte. Damna pro injuria illata, and expensæ litis"-in other words, damages and costs-" for damnum, in its proper and general signification, dicitur a demendo, cum diminutione res deterior fit.”(0) It is of the Damna pro injuria illata, or of damages as now known by that phrase in opposition to costs, that we are here treating.

It is of the rules which govern this species of property that I propose to treat in this volume, under the name of the Measure of Damages; and I arrange the subject in an order of which the following is a general outline: The origin of damages under the English system, and the Tribunals by which they are now imposed. The General Principles by which they are regulated. The Measure of damages in particular cases. Set-off, Recoupment,

(1) And the ancient and now obsolete writ of estrepement.

(m) Book II., chap. 29, p. 438. (n) Rep., Part X., p. 115.

(o) The origin of the word Damnum is thus given by Grotius: "Damnum forte a demendo dictum. Ita Varro, Libro V.: Damnum a demptione, cum minus re factum quam quanti constat. Alii magis probant derivare a Graeco danavn, ut sit

dapnum, deinde damnum; ut invos, sopnus, somnus. Nec absurde deducas a Graeco δαμνω, quod est βιαζω, aut ex ζημια, damnia, damnum; ut regia, regnum."-De Jure Bell. et Pac. Lib. II. Čap. 17. The Digest says, "Damnum et damnatio ab adem tione et quasi deminutione patrimonii dicta sunt."-De Damno Infecto, L. 39, Tit. 2, § 3.

and Mitigation of damages. The rule of damages under special Statutes. The control exercised by the Court over the Jury in regard to damages. Pleading, Practice, and Evidence, as applicable to the subject.

In investigating the origin of our present system of pecuniary compensation, it is not difficult to trace it back to those AngloSaxons, whose marked and peculiar character has so deeply impressed itself on every quarter of the globe.

Under the civil law, we shall see hereafter that the rights and remedies of the subjects of the imperial government of Rome, were carefully protected in regard to the matters of which we now speak. But when that beautiful and elaborate structure shared the fate of its creators, the rules of right [12] sank with it; and the law but slowly emerged from the wreck and chaos of empire. For nearly ten centuries the intellectual progress of Europe was arrested, or retarded; and during that period the earlier processes of civilization had necessarily to be worked out anew.

English jurisprudence finds its earliest monument in the sixth century, in the laws of Ethelbert, king of Kent; and this code, known as Leges Ethelbirhti, illustrates our present subject too curiously to be unnoticed here.

In this code we find the attention of the lawgiver confined almost exclusively to wrongs, or, as we would now say, to actions of tort; and the Were, Weregildum, or Weregild,-literally a man's money, or the price of a man,-is the earliest award of damages to be found in our jurisprudence. The antiquity of compositions for murder is illustrated by Homer, where, in the description of the shield of Achilles, two disputants are represented wrangling before the judge for the weregild or price of blood, εινεκα ποινης ανδρος αποφθιμενου. (p)

"The passion of revenge," says Mr. Hallam, "always among the most ungovernable in human nature, acts with such violence upon barbarians that it is utterly beyond the control of their imperfect arrangements of polity. It seems to them no part of the social compact to sacrifice the privileges which nature has placed in the arm of valor. Gradually, however, these fiercer feelings are blunted, and another passion, hardly less powerful than resentment, is brought to play in a contrary direction. The

(p) Hallam's Middle Ages, vol. i., p. 154, chap. ii., part ii.

earlier object of jurisprudence is to establish a fixed atonement for injuries, as much for the preservation of tranquillity as the prevention of crime. Such were the weregilds of the Barbaric Codes." ()

"Damages," says Sir Francis Palgrave, "recovered in a civil action for an assault, or any personal injury not being a felonious act, correspond to the Anglo-Saxon Were. When [13] Alfred enacts that the seduction of the wife of a Twelf

Hændman, or an Eorl, is to be compensated by payment of one hundred and twenty shillings; of the wife of a Six Hændman, by payment of an hundred shillings; and of the wife of a Ceorl, by payment of forty shillings, he does nothing more whatever than fix and declare the amount of the verdict, instead of leaving the assessment of damages, as we do, to the direction of the judge and the discretion of the jury.” (r)

The Were is not to be confounded with the Wite, the one answering to our civil damages for personal trespasses, (s) the other to our criminal mulet or fine. It is to both the were and the wite that Tacitus refers when, speaking of the Germans, he "Sed et levioribus delictis pro modo pœna; equorum says, pecorumque numero convicti multantur, pars multa regi vel civitati, pars ipsi qui vindicatur, vel propinquis ejus, exsolvitur." (t)

*

*

(9) Hallam, ut supra. "La Composition," says Guizot, "est le premier pas de la legislation criminelle, hors du regime de la vengeance personnelle. La composition est une tentative pour substituer un regime legal à la guerre; c'est la faculté donnée à l'offenseur, de se mettre en payant une certaine somme à l'abri de la vengeance de l'offensé; elle impose à l'offensé l'obligation de renoncer à l'emploi de la force."-Hist. de la Civilization en France, Tome 1, pp. 275 and 276.

(r) Palgrave's Rise and Progress of the English Commonwealth, vol. i., pp. 205 and 32.

(s) "The Wite was a penalty paid to the crown by a murderer. The Were was the fine a murderer had to pay to the family or relatives of the deceased; and the Wite was the fine paid to the magistrate who presided over the district where the murder was perpetrated. Thus the Wite was the satisfaction to be rendered to the community for the public wrong which had been committed, as the Were was to the family for their

private injury."-Bosworth's Anglo-Saxon Dictionary, in voc. Were and Wite.

Dr. Lappenberg, in his history of England under the Anglo-Saxon Kings (see B. Thorpe's Translation, London, 1845, vol. ii., p. 336, Particular and Penal Laws), mentions several other fines imposed, besides the Were and the Wite, in cases of homicide. He says, "The relations of the slain received the whole wergild annexed to his rank in the community." "Previously to paying the wergild, the king's mund, a fine to the king for the breach of his protection, was to be levied-after which, within twenty-one days, the healsfang (apprehensio colli, collistrigium), a mulet in commutation of the pillory, or some similar punishment, was to be discharged, and after that, within twenty-one days, the manbot, or indemnity to the Lord of the slain for the loss of his man. In addition to all these, there was still the fyht wite, due to the crown for the breach of the peace, which, as well as the manbot, could never be remitted."

(t) De Moribus, c. 12. Palgrave, I. p. 99.