PREFACE TO THE FIRST EDITION.

IT can hardly be necessary to apologise for the appearance of a treatise on Damages. The subject is certainly an important, and not a very easy one. The materials are scattered over all our reports, and many of our statutes. Yet, with the exception of the obsolete work by Serjeant Sayer, no English writer has ever thought of collecting them.

The American treatise, by Professor Sedgwick, has gone far to supply this want. The great merits of his work are too well known to need any commendation from me. Its ability and research will be best appreciated by those who have studied it as minutely as I have done, and I gladly acknowledge the assistance which it has afforded me. It appeared to me, however, that there was still room for an English work upon the same subject. Many topics of importance to the English practitioner are omitted by Mr. Sedgwick, partly through design, partly on account of the differences that have sprung up between the laws of the two countries. He has, also, naturally given a prominence to American cases, which is hardly satisfactory to us, oppressed as we are by the multitude of our own reports, and unwilling to extend our researches into unknown regions. Since the last edition of his treatise, our own Courts too have been remarkably prolific in decisions upon this branch of the law, and have supplied materials which well deserve a fresh attempt at classification. I have tried to collect every English case which bore upon the law of Damages; and have only resorted to American decisions, where none of our own were in point.

One of my great difficulties has been to distinguish between the right to recover, and the amount to be recovered. The line which divides these two branches of law sometimes vanishes entirely. The

right to sue at all sometimes depends upon the existence of the very circumstances which determine the measure of damages. For instance, where the wrong complained of affects the public generally, the particular loss sustained by the plaintiff is the fact which at once gives him a right of action, and gauges the compensation he is to obtain. So in actions against executors, the possibility of obtaining any real satisfaction may depend entirely upon the form in which they may be sued, whether in their representative or personal character. In many cases of torts, no measure of damages can be stated at all; and the only way of approximating to such a measure, is by ascertaining what evidence could be adduced in support of the issue. All this has made many parts of the present work resemble a treatise on the law of Nisi Prius, rather than one exclusively appropriated to Damages. Wherever such divergences appear, I must only beg the reader to attribute them to a difficulty which I have done my best to surmount.

That many errors of a much graver nature, both omissions and mistakes will be discovered, I cannot but expect. For these I must only ask the indulgence of the critic. Those who are best acquainted with the mazes of our law, will be the most ready to pardon me for going astray.

JOHN D. MAYNE.

5, ESSEX COURT, TEMPLE,

May, 1856.