The redress of a wrong is the most usual application of remedial justice. The law goes upon the theory that the plaintiff shall have reparation for the wrong which the defendant has done him; and if the law falls short of obtaining its ideal of justice, this is due to no fault in the theory, but implies that the machinery of the law is insufficient to accomplish its purposes. Damages should be a compensation and satisfaction for some injury sustained. "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 problem set for the law and its tribunals is to decide what is to constitute that "satisfaction," and how it is to be secured.

In early ages the satisfaction for injuries was secured by retaliation. This principle meets the sentiments of mankind still. But as it was unsafe to have injured individuals going about the community seeking satisfaction, the judicial personage became a creation of public policy. But it was not

1 2 Bl. Comm. 438.

less his business to give satisfaction for the injury than it was the injured individual's desire to obtain it. What the plaintiff considered an adequate recompense was given, and was invariably governed by the rule of retaliation. The lex talionis even suffered an exaggeration when its administration passed from the hands of the injured party to that of the judge-it became punitive; for the injury or conversion of one ox by the defendant, the plaintiff was to have two. This may have been a rude way of taxing the costs.

The English and American law attempts to redress most wrongs by an award of damages estimated in money. The theory of the law, however, is satisfaction for the injury, and exact reparation will be made where possible. The law of specific performance is given as wide an application as the appliances of remedial justice will admit of. Money damages are only given for injuries not pecuniary, because the courts do not know of anything better. At all events that is now customary law. But the principle of reparation remains unchanged. Now nothing can amount to

reparation without it is satisfactory to the mind of the injured party. Specific performance of a contract would satisfy this sentiment. Damages should come as near to this ideal as may be. All damages are necessarily sentimental. The plaintiff has one sentiment about the matter; the jury, looking at it from the standpoint of people in general, would very likely have another. What attention should a jury give to the sentiment of a party litigant? There must be many cases where it can only be absurd to expect that a jury's notions of compensation can be just either to plaintiff or defendant, as exemplified by the remark of an English judge of former times: "No jury shall say how my wife shall be dressed." In many cases the estimate of the party only could be the just one. By this of course is meant the plaintiff's bona-fide estimate-an estimate freed from the vagaries of imagination and from falsehood. The question is, What regard shall be paid to a party's own estimate of his damage?

Ancient law, in allowing retaliation, was ideal. The plaintiff in early Rome estimated his damages under oath. Traces of the ideal elements of the early Roman law are still to be found in the civil law of Continental Europe. The doctrine of exemplary damages is not known; full compensation for the injury is the rule. The matter is looked at largely from the plaintiff's standpoint. It is believed that illustrations of this standard for measuring damages are not wanting in the common law. In the case of the Baltimore and Potomac Railroad Co. v. Fifth Baptist Church, the charge to the jury that it was the personal discomfort to the con

gregation caused by the annoyance of an engine-house and railroad tracks which had been built in close proximity to the church that was to be considered in the assessment of damages, was sustained; and this notwithstanding the fact that the engine-house complained of may have actually increased the value of plaintiff's property. When the assessment of damages is considered from a plaintiff's sentimental standpoint, it will often be difficult to estimate them in money at all, for the plaintiff himself cannot name his detriment in dollars and cents; yet it is well settled that mere difficulty in the assessment of damages in any case is no objection to their recovery.* As with a blow on the face, there may be no arithmetical rule for the estimate of damages, but the true injury to the plaintiff, viewed, it is apprehended, from the plaintiff's standpoint, must serve as the guide, and in this estimate the damages for the sentimental injury may far exceed those for that which is only physical.' Unless a high pecuniary estimate is put upon sentimental injuries, courts are powerless to protect innocence and hold in check negligence and malice, as in the case of a ruthless search for stolen money in the house of an honest man.' Damages recovered for wounded pride, loss of honor, a blow to the affections, and the like, are for wrongs not imaginary, though purely sentimental, and are to be considered from the injured person's standpoint-his position in society, disposition, character, cultivation, and sex. Thus a female passenger may recover from a railroad company compensation for her sense of humiliation from being kissed by a conductor. In this case a verdict of $1,000 was allowed

Railroad Co., 5 Sawyer, 107; Boyle v. Case, 9 id. 386; Ward v. Blackwood, 48 Ark. 396. 4 Anon. Minor, 52.

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to stand, although plaintiff said "there was no actual injury to complain of." And a woman may recover from a physician for her sense of shame due to the fact that the physician brought a layman to her bedside at the delivery of her child, she supposing at the time that both men were physicians. The report shows that the circumstances of this case were such that it is difficult to see why the plaintiff was entitled to a recovery. But if it be good law, a better illustration of sentimental damages can scarcely be imagined.'

A less serious subjective injury if possible allowed as an element in assessing damages arose from the fact that a lady was negli gently carried beyond a flag station, and was obliged by the circumstance to walk through a piece of dark woods at nightfall, though suffering no harm.'

Meagher v. Driscoll was a case where the superintendent of a cemetery removed the body of plaintiff's child to a charity plot, upon the mistaken idea that the plaintiff's burial lot had not been paid for. Plaintiff brought trespass quare clausum against the superintendent.

"A dead body," says Foster, J., "is not the subject of property, and after burial it becomes a part of the ground to which it was committed-earth to earth, ashes to ashes, dust to dust.' The only action that can be brought for disinterring it is trespass quare clausum.

The trial judge ruled that "the jury in assessing damages would have a right to consider the injury to the plaintiff's feelings, and would not be restricted to the mere pecuniary loss or damage to his property."

The jury returned a verdict for the 1 36 Wis. 657.

46 Mich. 160.

3 Railroad Co. v. Eaton, 94 Ind. 474.

4 99 Mass. 281.

plaintiff, assessing damages in the sum of $837.50.

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The measure of damages was correctly stated. The gist of the action is the breaking and entering of the plaintiff's close. But the circumstances which accompany and give character to a trespass may always be shown either in aggravation or mitigation. He who is guilty of a wilful trespass, or one characterized by gross carelessness and want of ordinary attention to the rights of another, is bound to make full compensation. Under such circumstances, the natural injury to the feelings of the plaintiff may be taken into consideration in trespasses to real estate as well as in other actions of tort. Acts of gross carelessness, as well as those of wilful mischief, often inflict a serious wound upon the feelings, when the injury done to property is comparatively trifling. is comparatively trifling. We know of no rule of law which requires the mental suffering of the plaintiff, or the misconduct of the defendant, to be disregarded. The damages in such cases are enhanced, not because vindictive or exemplary damages are allowable, but because the actual injury is made greater by its wantonness.'

What do these remarks of Judge Foster mean? Simply this: that a principle of feudal law controls the form of the action. To say that trespass quare clausum is the gist of the action, when one considers the circumstances of this case, is analogous to the use made of fictions to support forms of actions and preserve equities. Here the plaintiff has a just claim to a satisfaction for a serious wrong. By a fortunate accident there is a piece of legal machinery at hand which gives the court an opportunity to consider the true injury; and to say