Plea. That, after the accruing of the causes of action, plaintiff, being in actual custody, petitioned the Court for the Relief of Insolvent Debtors; and that, by a vesting order made by them, the causes of action vested in the provisional assignee.

Second replication to this plea: That the assignee has not interfered to claim the causes of action, or to prevent the plaintiff from suing for them.

Rejoinder: That the causes of action were wholly before plaintiff's petition; that plaintiff filed a schedule, and was discharged as to the debts named in it, which are not yet satisfied.

Demurrer. Joinder.

Wordsworth, for the plaintiff. The plea is bad, as it does not shew that the defendants have complied with the provisions of the Common Law Procedure Act (15 & 16 Vict. c. 76.) s. 142. [Coleridge J. The

sections, from 135 to 142 inclusively, are confined to the effect of death, marriage or bankruptcy on the proceedings in an action already commenced when the event happens.]

The plea ought to shew that the assignees have interfered to claim the cause of action; Herbert v. Sayer (a), Jackson v. Burnham (b). [Lord Campbell C. J. The doctrine acted on in these cases is applicable where the cause of action is one arising from dealings with the bankrupt or insolvent after the bankruptcy or insolvency. But, unless you can say something to change our opinion, we think that, when the

(a) 5 Q. B. 965.

(b) 8 Exch. 173.

1854.

STANTON

v.

COLLIER.

1854.

STANTON

V.

COLLIER.

cause of action was already vested in the debtor at the time when by the order his property passed to the assignee, interference on the part of the assignees is wholly immaterial.]

The cause of action is not one which passes to the assignees at all. The principal damage is plaintiff's insolvency, a matter injurious to his personal feelings, and for which a jury might properly give vindictive damages. Such a cause of action does not pass: this was assumed in Beckham v. Drake (a), and decided in Rogers v. Spence (b). [Lord Campbell C. J. The distinction between the cases in which the cause of action passes to the assignees and those in which it does not is analogous to the question considered in Blake v. Midland Railway Company (c). A solatium for the injury done to the personal feelings of a debtor does not pass to his assignees; damages for the injury to his property do. Coleridge J. But in this case the breach is for not delivering property, so that the cause of action itself might be sued for by the assignees. And the assignees might, for aught I at present see, lay the special damage in precisely the same terms as is now done by the plaintiff; for it all points to a pecuniary loss.] The jury might give vindictive damages for the insolvency; that is the test laid down in Brewer v. Dew (d), the decision in which case goes further than the plaintiff now requires.

(a) 2 H. L. Ca. 579, affirming the judgment of Exchequer Chamber in Drake v. Beckham, 11 M. & W. 315, which reversed the judgment of the Exchequer in Beckham v. Drake, 8 M. & W. 846.

(b) 12 Cl. & F. 700, affirming the judgment of the Exchequer Chamber in Rogers v. Spence, 13 M. & W. 571, which affirmed the judgment of the Exchequer in Spence v. Rogers, 11 M. & W. 191.

(c) In Q. B.; Feb. 21, 1852.

(d) 11 M. & W. 625.

H. Bullar, contrà, was desired by the Court to confine himself to the point last made. The whole law on this subject was elaborately considered by the House of Lords in Rogers v. Spence (a) and Beckham v. Drake (b), in which latter case all the prior authorities were collected and reviewed. In a more recent case, Wetherell v. Julius (c), the Court of Common Pleas, after time. taken to consider, stated the principles to be deduced from these cases. They say: "In the former" (Rogers v. Spence (a)), "it was held, that a cause of action arising out of a wrong personal to the insolvent, and for which he would be entitled to a remedy, whether his property were diminished or impaired or not, does not pass to the assignee." "On the other hand, in Beckham v. Drake (b), it was held, that, where pecuniary loss or damage is the substantial and primary cause of action, it does pass to the assignee, although such pecuniary loss may produce inconvenience to the party." Now in the present case there is but one cause of action, the non-delivery of the printing machine: no fresh cause of action would accrue on the happening of the special damage; Howell v. Young (d). That cause of action is as much a damage to the personal estate as the dishonouring of a bill of exchange; and an action for dishonouring a bill passes to the assignees; Hill v. Smith (e). The special damage to the plaintiff's trade is entirely a pecuniary damage: and, as to the insolvency, that is in general a grievous pecuniary damage. It is said that it is also a personal inconvenience to the plaintiff. Even if a solatium for that could be recovered, still the substantial cause of action is pecuniary; which brings this

(a) 12 Cl. & F. 700.
(c) 10 Com. B. 267. 280.

(b) 2 H. L. Ca 579.
(d) 5 B. & C. 259,

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V.

COLLIER.

(e) 12 M. & W. 618.

1854.

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V.

COLLIER.

case within Beckham v. Drake (a) as expounded in Wetherell v. Julius (b). But no damage can be recovered for the insolvency. In one sense, every thing which has diminished the plaintiff's property may be said to have caused his insolvency; but the damages recoverable for a breach of contract are only those directly connected with the contract. In Pothier, Traité des Obligations, Partie 1. Cap. 2. Art. 3. sects. 159 to 162 (c), the principle is very clearly explained. The person, he says, who has broken a contract must make good to the other side the loss which the non-performance has occasioned, and the profit which he would have made; according to the definition of damages in the Digest, Lib. 46. Tit. 8. Ratam rem haberi: Law 13. In tantum competit, in quantum meâ interfuit; id est, quantum mihi abest, quantumque lucrari potui. But this, Pothier says, is not to be understood as making the party in default bound to make good, indiscriminately, every loss occasioned by the nonperformance of the contract, still less all gains which might have been made, had the contract been fulfilled ; but only those so connected with the contract that the parties, when making the contract, may be supposed to have contemplated them: and in general, he says, the parties must be taken to contemplate those consequential damages which relate to the subject matter of the contract itself, not the collateral effect on other property of the party injured. Therefore the civil law makes the defaulting party liable only for those damages which relate to the subject matter

(u) 2 H. L. Ca. 579. (b) 10 Com. B. 267. (c) Euvres, tom. 1. p. 67 (2nde ed. 1781.). See the French Code Civil, ss. 1149, 1150, and Rogron's Comment, Codes Français Expliqués, Vol I. p. 212.

XVII. VICTORIA.

of the contract: damni et interesse, propter ipsam
rem non habitam. Pothier puts two instances. If a
party contract to supply a horse and make default, he
is liable to make good the higher price which the pur-
chaser has to give in order to procure another; for that
was, propter ipsam rem non habitam, a kind of damage
which the parties must have contemplated. But, says
Pothier, if the purchaser were a canon, who for want of
a horse was unable to reach his benefice in time and so
lost his year's revenue, the defaulter should not be bound
to make good this collateral damage; unless, as he after-
wards qualifies it, there was in the contract a clause
that the horse was to be supplied in time to enable the
purchaser to reach his benefice; for in that latter case
the damage would be such as the parties contemplated.
Or, if a house be let for eighteen years, and after eight
years the tenant is evicted, the landlord must make
good the tenant's expense in removing, and the extra
rent which he has to pay in order to get as good a
house for the rest of the term; but he is not bound to
make good the loss of the goodwill of a trade which the
tenant may have raised in the house, unless, as in the
last case, the house had been expressly let as a shop in
which to carry on that business. Still less should he
compensate him for damage done to his goods by the
negligence of those removing them. In Sedgwick On
Damages, chap. 3., the whole of the subject is discussed
and the authorities are collected. The learned author
comes, at p. 112 (2d ed.), to the conclusion that, in cases of
breach of contract, "The rule of the civil law is perhaps
the best that can be adopted; that the party in default
shall be held liable for all loss that may fairly be con-
sidered as having been in the contemplation of the
parties at the time the agreement was entered into."

1854.

STANTON

V.

COLLIER.