Where the action is brought to prevent trespasses, to try titles to land, or to determine rights of any kind, it is very equitable that the party in the wrong should bear the expense of the controversy; but in most other cases, the rule of nominal damages, provided they carry costs, only tends to engender litigation.

We shall have occasion hereafter to notice this more particularly, but it should be borne in mind, that the rule of nominal damages, unless carefully limited to cases where a right is necessarily litigated, results in gross injustice. It is of no consequence whether a claim to real or to personal property is in question, the defendant ought not to be charged with the costs of the proceeding, if the suit be either malicious or unnecessary. The law should hold out no inducement to useless or vindictive litigation.*

Having thus stated the rule of damages where no actual loss is sustained, we now proceed to ascertain the extreme limits of legal relief where positive injury is done; and for that purshall next examine the subject of REMOTE AND CONSEQUEN

pose

TIAL DAMAGES.

* I am happy to find this language cited with approbation in Vermont, in Paul vs. Slason, 22 Verm., 231, per Poland, J.

The case of Hall, App't, vs. Ross, Resp't, 1 Dow, 201, presents, in a striking point of view, the difference between the Scotch and English law, on the subject of nominal damages. It was a suit growing out of a lease of certain salmon fishing stations, which had been disturbed by the erection of dock. In the Scotch court, the judges (fourteen in number,) were equally divided. Of the seven who decided against the claim, four were satisfied that the appellant had sustained damage, but apparently thought the damage could not be ascertained, and judgment was given against the party claiming, with costs. The Lord President, however, said that in several actions usual in Scotland, they were under the necessity of "conjecturing the damages."

On appeal to the House of Lords, Lord Eldon said: "If, in England, a majority of the judges had been of opinion that some damages were due, their lordships would never have heard of the decision being against the person who had made out his claim to damages. Too much might be given him, or too little; but he could never, under such circumstances, be dismissed out of court, with the additional loss of having to pay the expenses of the suit. It might be very difficult to ascertain the amount of the damage, and in this country there were two modes of proceeding in such cases, viz., to prove the amount by the testimony of competent witnesses, or when there was no ground or criterion to estimate the damage, they were in the habit of giving nominal damages, but they never dismissed the claim altogether when it appeared that there was some damage." And the judgment was reversed, with instructions: First, that if damages had been sustained, compensation was due. Second, that the party should furnish further proof, and if not, that the court should ascertain the amount of damages by such other means as their practice should authorize, and then to do what was fit and just.

CHAPTER III.

REMOTE AND CONSEQUENTIAL DAMAGES.

No compensation allowed in damages, but for the direct and immediate consequences of the act complained of-French Law on this subject-Scotch Law-The Common Law-What are considered direct and immediate consequences-Loss of profitsAs between principal and surety-Statutes-Counsel fees-Damages arising after suit brought-Prospective damages-Liability of grantees of franchises for consequential damages.

HAVING in the last chapter stated the measure of damages where no actual loss is sustained, I now proceed to exhibit the general rule which fixes the limit of compensation in cases where positive injury results from the alleged wrong. That rule is the one which prohibits any allowance for damages remotely resulting from the principal illegal act. Such damages are frequently termed remote damages, and sometimes consequential damages. These terms are not, however, necessarily synonymous, or to be indifferently used. All remote damages. are consequential, but all consequential damages are by no

means remote.

We shall have frequent occasion to notice the existence of this principle hereafter, when examining more minutely the rules of damages in particular cases, but it is proper before entering on that part of the subject, to have an idea of the general boundaries of this branch of our jurisprudence.

It has already been stated, that the law does not aim at complete compensation for the injury sustained; that it seeks rather to divide than to satisfy the loss, and that in cases of contract, as well as of tort, where no question arises of fraud, malice or oppression, the direct pecuniary damage with the costs of the litigation form the measure of relief. In other words, the law refuses to take into consideration any damages remotely resulting from the act complained of. This proposi

tion, or one correlative to it, is expressed in the maxim Causa proxima, non remota spectatur; or, in the language of Lord Bacon, "It were infinite for the law to judge the causes of causes, and their impulsion one on another. Therefore, it contenteth itself with the immediate cause, and judgeth of acts by that without looking to any further degree."* This general principle pervades the civil as well as the common law, and applies equally to cases of breach of contract, and of violation of duty; to all cases, in short, where no complaint is made of any deliberate intention to injure. In these latter cases we have seen that our law does not pause at the line of mere compensation, but proceeds to punish the offender.

The language, however, held on this subject, and the reasons assigned for the disregard of remote damages, are far from being uniform. In regard to contracts, it is sometimes said that the defendant shall be held liable for those damages only which both parties may be fairly supposed to have contemplated at the time they entered into the agreement, as likely to result from it; and this appears to be the rule adopted by the writers of the modern civil law. Thus Pothiert puts the case of an agreement for the sale of a horse, and failure to deliver. If in this instance horses have risen in price, the purchaser has a claim for what he has been obliged to give for a similar animal, over and above the price at which he was to have that of the seller; and this, in the language of the Roman Law, he terms the damages propter rem ipsam non habitam.

But on the other hand, if the purchaser were a canon of the church, and by reason of the non-delivery of the horse, could not arrive at his residence in season to receive his gros fruits, (or tithes,) the seller is not liable for the loss of those gros fruits, because this accident was not foreseen at the time of the contract.

So in case of a letting of a house for a given term, say eighteen years, which the letter in good faith, supposes his, and if at the end of ten or twelve years the lessee is evicted by the true owner, the lessor is liable for the damages resulting from the expense of moving, and the rise of the rent of similar tene

* Maxims of the Law, Regula 1.

✦ Traité des Obligations, Part I., Ch. II., Art. III., § 16, et seq.

ments; these are propter rem ipsam non habitam. But he is not liable for an injury done to a business established in the house by the lessee subsequent to the letting, nor for furniture injured in the removal; this is damage that could not have been contemplated at the time of the contract.

But if, on the other hand, the horse above referred to had been sold for the express object of enabling the canon to arrive in time for his gros fruits, or the building had been let for the express object of carrying on a particular business, then the injuries which otherwise would be too remote, become direct and immediate, and constitute a valid claim, as forming part of the contract between the parties.

So if one, not a carpenter, sell timber which the purchaser uses to prop up his building, and by reason of the timber being defective, the building fall and be destroyed; if the seller acted in good faith, and was ignorant of the defect, he will only be liable for the difference in price between good timber and that sold. If, however, the seller was a carpenter who sold the timber for the express purpose of propping up the house, then he shall be held liable for all damage done the building. But again, if the timber be sold to be used in reference to a particular building, and it be used for one larger and more valuable, even if it were insufficient for a smaller one, the seller shall only be liable for the value of the smaller building.

So, again, in the second case, the seller of the timber is only liable for the building itself, and not for furniture in it at the time of its destruction.

But if an architect contract to erect a building, and by rea son of his negligence it fall, he shall be liable for the furniture as well as the building, because it is to be considered that the architect must have been aware that the building would be used for holding furniture. But he is not liable for jewelry and manuscripts of great or extraordinary value.

In cases of fraud, the civil law made a broad distinction. In such cases the debtor was liable for all the consequences of his fraud, not only of those propter rem ipsam, but all others, for he who commits a fraud is bound velit, nolit, to repair the wrong caused thereby.

For instance, if a cow tainted with an infectious malady, is fraudulently sold, the seller will be liable, not only for the ani

mal itself, but for the others destroyed by the spread of the contagion. But Pothier is of opinion that there is still a limit to this liability, and he puts the case of a similar contagious disease, and supposes that in consequence thereof the purchaser is prevented from cultivating his lands, by means whereof his payments are suspended, his property is seized, and he is thrown into prison; he considers it clear in this case, that the seizure of property is not to be charged to the fraudulent sale; doubts, also, if the being prevented from cultivating the property should enter into the consideration of damages, and thinks, at all events, it should only do so in part.

The modern French law, as declared in the Napoleon Code, contains the recognition of the same general principles. "The damages due the creditor, consist in general of the loss that he has sustained, and the profit which he has been prevented from acquiring, subject to the modifications hereinafter contained."

"The debtor is only liable for the damages foreseen, or which might have been foreseen at the time of the execution of the contract, when it is not owing to his fraud that the agreement has been violated.

"Even in the case of non-performance of the contract, resulting from the fraud of the debtor, the damages only comprise so much of the loss sustained by the creditor, and so much of the profit which he has been prevented from acquiring, as directly and immediately results from the non-performance of the contract."*

Two prominent points of difference will be borne in mind, between the principles of the modern civil system as thus laid down, and those of the common law, which arise mainly from the arbitrary character of our forms of action. By those forms

*The language of the Code is as follows: "Les dommages et intérêts dus au créancier sont, en géneral, de la perte qu'il a faite, et du gain dont il à été privé, sauf les exceptions, et modifications ci-aprés.

"Le debiteur n'est tenu que des dommages et interêts qui ont été prévus ou qu'on a pu prévoir lors du contrat, lorsque ce n'est point par son dol que l'obligation n'est point executée.

"Dans le cas même ou l'inexécution de la convention résulte du dol du debiteur, les dommages et interêts ne doivent comprendre à l'égard de la perte éprouvee par le créancier, et du gain dont il à été privés, que ce qui est une suite immédiate et directe de l'inexécution de la convention."-Code Civil, Liv. III., Tit. III., sect. 1149, 1150, 1151.