to discriminate, with regard to the damages sustained, between that portion which is to be made good and that which is to be borne by the sufferer."*

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's 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 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 subject 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

*

"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 du des dommages et interêts est toujours une question de droit qui depend de scavoir si celui a qui on les impute doit en etre tenu. *Cette premiere question de scavoir s'il est du des dommages et interêts étant décidée, c'en est une seconde, de scavoir en quoi ils consistent, c'est a dire de discerner dans toute l'étendue du dommage qui est arrivé ce qui doit en etre imputé a celui qui est obligé de dedommager, et ce qui ne doit pas lui etre imputé.”—Domat, Loix Civiles, Lec. III., Tit. 3, Sec. II., § 2.

the 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 lamented Story ;* but no one 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 able profession.t

"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 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 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.

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. 1886,) has not even any head of" Damages;" and Harrison's, the most complete of all, has, under the head of "Damages," only a very inconsiderable number of cases. It has been necessary, there

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 inquiries, or to abridge the toil of those who painfully devote themselves to the great science of justice-my labor will be abundantly repaid.*

fore, to go through the index to each volume of reports separately, which, considering our multorum camelorum onus, is not a holiday task. I hope our reporters and digesters may hereafter think it not improper to reserve one head for the Rule or Measure of Damages.

* I think I cannot err in subjoining here an extract from a letter written by the late Mr. Justice Story, stating his opinion of the value of a work like the present, if properly executed.

MY DEAR SIR:

Cambridge, November 7, 1844.

In reply to your letter I beg to say, that I think a book on the Law and Rules of Damages would be of great utility to the profession, and would supply a deficiency which is constantly felt and lamented. I know of no book that treats of the subject at once fully, accurately, and with suitable distinctions and expositions of principles. The authorities, either in England or America, are not in entire harmony with each other; and different States have apparently adopted different rules in the same class of cases. We want a thorough analysis of the whole subject, with all the lights of the modern authorities.

JOSEPH STORY.

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 branch of this extensive subject.

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 in the United States, is generally remedial in its 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 damages to the sufferer.*

The rules which in this matter govern its action, the amount of compensation awarded by Common Law tribunals, or, in

* 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 vs. Gattke; 15 Jur., 261.

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, is sufficient to show that the powers of these 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 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.*

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,† from the nature of the case, become a suit for specific performance. 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.

*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 vs. McGown, 2 Barb. S. C. R., 270.

Robinson vs. Bland, 2 Burr. 1077, 1086.-" Where assumpsit proceeds on a 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 Loughborough in Rudder vs. Price, 1 H. Bl., 547.