question. But it may, I think, be solved. We must not go back to the date of the contract for the price, and then come down to the present day for the actual value of the land, and charge the plaintiff with the difference. The defendant must bear the consequences of the prevailing delusion about prices and new towns under which the purchase was made. On the other hand, the plaintiff cannot say that his fraud has worked no injury, because every body has now found out that the land never was worth any thing for the purpose of building a town upon it.* The cause must, as far as practicable, be tried just as it would have been tried the day after the contract was made, if the question had arisen at that time. The jury must assume, what the parties then believed, that the land was valuable as the site for a town, and then inquire how much less the land was worth for building purposes, taking the surface as it actually existed, than it would have been worth for those purposes, had the plaintiff's representation concerning the surface been true. One mode of arriving at the correct result, and perhaps the only one, would be to inquire into the probable expense of reducing and conforming the surface of the ground to a condition corresponding with the plaintiff's representation. This would, I think, give the correct rule of damages; but in the present stage of the cause, it is not necessary to settle the question."

In a similar action in New York, it has been said that the fraud would have authorized the defendant to deliver up the possession and rescind the contract; but that if he affirms the contract and goes into possession, he cannot then either recover back the purchase money paid, or defeat a recovery of the purchase money not paid, as on a total failure of consideration; the most he can claim is to rely on his action for damages for the fraud, or recoup them in an action for the purchase money.†

We ought here to notice an important principle which has been laid down in cases of fraud, well calculated to enforce honesty and fair dealing.

It has been held in Massachusetts, on the sale of a tannery, that where one is deceived in the purchase, by the false affirmations of a third party, and thus pays more than it is worth, the party by whom he was thus deceived cannot defeat the action by showing that the plaintiff sold the property for the same sum which he paid for it; and it was said that the sum for which the party sold the property is not the rule by which to measure the damages, otherwise it might make the question of

*See Smith vs. Griffith, 8 Hill, 333.

+ Lamerson vs. Marvin, 8 Barb. S. C. R., 9. In Alabama, as has been said, fraud furnishes no defense at law. Patton vs. England, 15 Ala., 69.

fraud depend upon the rise or fall of the property in the market.*

So, again, where fraud has been practiced in a sale, as of a horse, the measure of damages is, as in an action for the breach of warranty, the difference between the value of the article sold and the value of such an article as it was represented to be, even if, at the time of the sale, the property was fairly worth the price paid.†

As we have already seen, it is competent in all actions of this description, to give in evidence the circumstances which accompany and give character to the acts complained of; but the nature of the testimony that is admissible for such purpose belongs rather to treatises on the subject of evidence. It seems that this rule is confined to such injuries as amount to trespasses, for the obvious reason that to permit a substantive injury requiring a different form of action to be alleged by way of aggravation, would be in effect to confound the forms of action. And the plaintiff cannot give evidence of any matters in aggravation not stated on the record, although they would not have supported any independent action, which do not naturally and even necessarily result from the injury alleged on the record. Thus, if the declaration merely alleges a false imprisonment, the plaintiff cannot show in aggravation, that he was stinted in his food, or that he caught an infectious disorder.

It is manifest that in the cases which we are now considering, it is difficult, if not impossible, to lay down any general rules. But it seems that the following propositions can be maintained.

The measure of damages does not depend on the form of the action; and though the proceeding be in tort, if no circumstances of aggravation be shown, the relief is restricted to the line of legal compensation.

Even if circumstances of aggravation are made to appear,

4

* Medbury vs. Watson, 6 Metcalf, 246; approved in Cornell vs. Jackson, 8

Cush., 506.

+ Stiles vs. White, 11 Met., 356.

Starkie on Evidence, vol. 2, P. II., 1116; Trespass, supra, 529, et seq.

§ Starkie, ubi supra.

| Starkie, ubi supra; Lowden vs. Goodrich, Peake's C., 46; Pettit vs. Addington, ibid., 62.

the court will look into the evidence admitted and the charge delivered; and if it be shown that testimony has been received or instructions given, which, if the purpose of the jury were to give compensatory damages, would have been wrong, the verdict will not be allowed to stand: in other words, the presumption in ordinary cases is, that the jury intended to award compensation only, and not to inflict punishment; and if compensation be the object, it must be regulated by legal principles.

There is a class of cases, however, ranging between those where vindictive damages are claimed, and those in which trespass unattended by any evil motive is complained of. In these cases, where there is clear misconduct on the part of the defendant, yet not so gross as to permit exemplary damages, the courts show a disposition to extend the limit of relief, and carry remuneration beyond what they would do in cases of contract, or of trespass without fault. But this branch of our subject is still far from being reduced to clear and definite boundaries.*

*See supra, 79, 80, 81, 88, 118.

CHAPTER XXIII.

THE RULE OF DAMAGES UNDER STATUTES.

General principle upon which damages are granted by Statute-Damages for taking private property for public use-in this country-in England-Damages in actions against Towns-for injuries done by animals-Flowing Lands-Patent Cases— Special cases-Damages for detention-Double and treble damages.

MANY interesting questions on the subject of damages arise under particular statutes. There is a large class of cases where a statute, while directing or prohibiting some particular act, omits to annex any penalty, or to prescribe any measure of damages. In these cases the party aggrieved by the forbidden act or omission, has his remedy at law. "The neglect of a compulsory statute which annexes no penalty to the transgression, will found an action at common law to those who have interest, ordaining the defendant either to do what the statute requires, or to pay damages." The damages in such case are entirely at large. In reference to acts of this kind, the Court of Exchequer in England recently held this language: "Where a statute prohibits the doing of a particular action affecting the public, no person has a right of action against another merely because he has done the prohibited act. It is incumbent on the part of the complainant to allege and prove that the doing of the act prohibited has caused him some special damage, some peculiar injury beyond that which he may be supposed to have sustained in common with the rest of the Queen's subjects by an infringement of the law. But when the act prohibited is obviously prohibited for the protection of a particular party, then it is not necessary to allege special damage.”+

There is another class of cases where the legislature, follow

* Chamberlaine vs. Chester R. Co., 1- Exch. R., 870.

+ Lord Kaims, Prin. of Eq., Book I., Part I., Ch. V., 179.

ing out the idea of the Aquilian law,* has endeavored to put a stop to all inquiry into the actual damages by fixing an arbitrary sum as the measure of relief. There are others where, in order to punish some particular act, it gives double and treble damages.

Questions of great number and variety arise under the statutes authorizing private property to be taken for public use, whereby a tribunal (generally a jury) is provided to assess the plaintiff's damages. It would be difficult to comment at large on the decisions made under these statutes, always more or less local in their bearing. It may not be improper, however, generally to refer to one or two as specimens of a numerous class. In the case of an arbitration to recover compensation for damage occasioned to the lands, mines, minerals, and works of the plaintiffs, under stat. 29 Geo. III. c. 74, there was no provision in the submission in regard to the measure of damages. The arbitrators made an allowance for the capital and interest invested in working the coal field; and, on motion, the Court of King's Bench held this right.†

In Massachusetts, where a party who has agreed to convey land for a sum certain to a railroad company, refuses to perform, and obtains an assessment of his damages caused by the laying out the road, the measure of the damages to which he is liable for the breach of his agreement, is the excess of the sum assessed over the sum for which he agreed to convey.

* Supra, 24.

+ In re Wright et al. vs. Cromford Canal Ca., 1 Queen's Bench, 98. Western R. R. Co. vs. Babcock, 6 Metcalf, 346.

For other cases in Massachusetts, as to lands flowed by mill-dams, see Leonard vs. Schenck, 3 Met., 357. Snell vs. Bridgewater, C. G. Manf. Co., 24 Pick., 296. Williams vs. Nelson, 23 Pick., 141. Hunt vs. Whitney, 4 Met., 603. Fitch vs. Stevens, 2 Met., 505. Seymour vs. Carter, 2 Met., 520. Fitch vs. Seymour, 9 Met., 462.

In Maine, as to flowing lands, Nelson vs. Butterfield, 21 Maine, 220. Seedensparger vs. Spear, 17 Maine, 123. Under the poor debtor act, in the same State, Cordis vs. Sagar, 14 Maine, 475. French vs. McAlister, 20 Maine, 465. Hathaway vs. Crosby, 17 Maine, 448.

In Massachusetts, as to sheriffs, &c., Bartlett vs. Eveleth, 4 Met., 149. In Mississippi, as to the same subject, Gwin vs. Breedlove, 2 Howard, 29.

In England, as to works of public improvement, Lee vs. Milner, 2 Mees. & Wels., 825. Thicknesse vs. Lancaster Coal Company, 4 Mees. & Wels., 472. Turner vs. Sheffield & Rotherham Railway Co., 10 Mees. & Wels., 425. Goldie vs. Oswald, 2 Dow., 585. Burnet vs. Knowles, 8 Dow., 280.

In this country, on the same subject, in Massachusetts, Patterson vs. Boston, 23 Pick., 425. Webber vs. Eastern R. R. Co., 2 Met., 147. Dodge vs. County Commis