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EX DELICTO. A Treatise on the Law of Damages. By John D. MAYNE, Esq.,

Barrister-at-Law. London: H. Sweet, Chancery Lane.


THE publication of a modern treatise on damages affords

us the opportunity of redeeming our promise, made now some time ago, to complete our notice of the Law of the Measure of Damages. At the same time, we have pleasure in directing the attention of our readers to Mr. Mayne's book, as going far to supply that deficiency which we, in our former article, pointed out as existing in this department of the law. All the cases bearing upon this extensive and interesting question have been brought together by the author with great industry and considerable acuteness; and his intention throughout has clearly been, not to make a book that might fall into Story's bitter category of English law-books ; viz., “A full Index of Reports, arranged under the appropriate heads, with the materials tied together by very slender threads of connection, but comprehensively to grapple with, and thoroughly to illustrate, his subject. As our chief object now is to touch on the measure of damages awarded in the principal kinds of action in tort, we shall not go into the details of Mr. Mayne's book further than may be necessary or convenient to illustrate this class of damage; but we may say generally, that if the matter of the book be not wholly new, its arrangement is undoubtedly novel and convenient: that if the author's own disquisitions are not so full as might be desired, they are terse, vigorous, and sensible; and that the whole work forms not only a very readable book, but also a valuable book of reference for the student and the adept.

The most important difference between actions ex contractu and actions ex delicto, as regards the assessment of damages, is, that in the former juries are forbidden, but in the latter are allowed and encouraged, to take into consideration the intention and motive of the defendants. All the circumstances of the case are submitted to their cognizance; and in such actions as libel, trespass, and crim. con., the Courts will not interfere with their verdicts, unless it can be shown that the jury have been actuated by some wrong principle, or have fallen into some mistake of fact. This was not always so.

1 See No. cvii. of the Law Magazine.

“ You were daring enough,” says Junius, addressing Lord Mansfield, “ to tell the jury that in fixing the damages they were to pay no regard to the quality or fortune of the parties; that it was a trial between A. and B.; that they were to consider the offence in a moral light only, and give no greater damages to a peer of the realm than to the meanest mechanic.” This was the case of Lord Grosvenor v. The Duke of Cumberland, tried in 1768; and the judge was wrong, and his assailant right; for in the well-known case of Wilford v. Berkeley, decided by the full Court ten years before (see 1 Burr. 609), it had been held that in cases of crim. con. all “the circumstances were properly and solely under the cognizance of the jury, and were fit to be submitted to their decision and estimate.“In fact," as Mr. Mayne says (p. 14), “if any other rule existed, a man of large fortune might, by a certain outlay, purchase the right of being a public tormentor; he might copy the example of the young Roman noble mentioned by Gibbon, who used to run along the Forum, striking every one he met upon the cheek, while a slave followed with a purse, making a legal tender of the statutory shilling !” But even in actions ex delicto, whenever the judges can find data for measuring the damages, they always take care to lay down rules on that subject. Thus in trover, juries are directed to give the value of the article not at the time of trial, but at the period of its conversion.-(See Read v. Fairbanks, 13 C. B. 692, which conflicts, however, with Greening v. Wilkinson, 1 C. & P. 625.) Again, where the damage is said “not naturally to flowfrom the wrongful act (a phrase, by the bye, which is about as unintelligible to us as the now exploded phrase of circumstances which ought to excite the suspicion of a prudent man”), such damage is excluded by the judge from the contemplation of the jury, as "too remote.” The learned authors of the last edition of Smith's Leading Cases (sce vol. ii. p. 430) admit “that the application of this rule to the varying circumstances of different cases is sometimes attended with great difficulty;" and our readers, after comparing the cases of Vicars v. Willcox, 8 East, 1, and Knight v. Gibbs, 1 Ad. & Ell. 43; Siordet v. Hall, 4 Bing. 607, and Blythe v. Birmingham Waterworks, 20 Jur. 334 ; Ashley v. Harrison, 1 Esp. 48, and Lumley v. Gye, 2 E. & B. 216, which we have culled at random from our note-book, may be inclined to agree with the admission. Again, in actions for malicious arrest or prosecution, after a long contest it was settled, by the case of Panton v. Williams, 2 Q. B. 169, that the question of “reasonable and probable cause” was for the judge, and not for the jury. In practice, however, the judges, by their disinclination to deal with these cases, show rather a disposition to "flee the monster their own hands have made;" and Baron Martin, in Dendy v. Henderson, 11 Ex. R. 199, professed his inability to understand how the question of reasonableness could be one for the Court to decide. It may be doubted whether these Procrustean rules do not rather impede justice than otherwise, and whether Sedgwick has not rightly said (see p. 16 of his Treatise on Damages) that “arbitrary rules, especially when used to fix values, are always a misfortune and a defect in jurisprudence." It may be a great question whether it is not matter for regret that any exception should ever have been allowed to the old rule," ad quæstionem facti respondeant juratores.” If new trials are to be awarded because judges may differ from juries on occasions where men of sense and justice may reasonably differ from one another, such a proceeding is the substitution of judicial authority in fixed magistrates, for the discretion lodged by the Constitution in the popular jurisdictions of the country. It is the boast of a free people, that only the verdict of their equals can deprive them of their life or property. The "nisi per legale judicium parium, vel per legem terræ," of Magna Charta, breathes the same spirit as the Roman Law. “Neminem (says Cicero pro Cluentio, 43) voluerunt majores nostri non modo de existimatione cujusquam, sed ne pecuniariâ quidem de re minimâ, esse judicem, nisi qui inter adversarios convenisset.Under the Saxon rule, the damages recoverable for various injuries were sums fixed by law. And no one can have had much experience in our own courts without being aware of the deep dissatisfaction felt by the public, and especially by the mercantile world, with the rules about damages laid down by the lawyers. They feel that on these points they are submitting,—not to the law of the land, -not to the judgment of their equals,-not to the judgment of men peculiarly or particularly conversant with the subjectmatter of the action ;-but to certain theoretical and arbitrary rules, which are too sophistical and refined for the exigences of ordinary every-day life. Hence the demand for Chambers of Commerce, mercantile arbitrators,—"conseils des prud'hommes." It was impatience of this kind that, at length warming into indignation, demanded the passing of the famous Libel Act in 1792; and we think it not at all improbable that, as the public come more fully to understand who are the real authors of the rules by which the measure of damages is at present regulated, a determination to submit no longer to "judge-made" law will produce another statute defining and regulating the true office of judges and juries.

And it may be another serious question whether a jury be not a more satisfactory, as well as a more constitutional, tribunal for the assessment of damages than any judge, however eminent in talent, or liberal in his sympathies. Doubtless it has been the habit for a long time in legal circles to sneer at the "intelligence" of juries; but to persist in these days in that sneer can only be because it has become a habit. There may still be remote parts of the country into which the light of education has not yet penetrated; but we believe that the average of modern juries are as likely, or more likely, to come to a decision consistent with right reason and common sense, than, or as, any one, or any four, of the occupants of the judicial Bench.

The judges are men; but they never forget that they are on a pinnacle above their fellow-men. The Lethe, which is said to run between the Bench and the Bar, swells into a wider stream where it divides the Bench and the suitors. We must not be understood to complain of this, for it is, perhaps, only consistent with what Bishop Butler calls “the course of nature;" but we conceive it to be a sound argument for not intrusting judges with the assessment of damages. There was a late case, within, perhaps, the memory of some of our readers, where a seamstress, who gave her name and address, was ignominiously paraded through the streets and locked up all night on a false charge of passing bad money; and yet a learned judge, who admitted that it was a case for exemplary damages, and who must, or ought to have known, that £10 would not cover the plaintiff's costs as between attorney and client, actually awarded her this pitiful sum only, when the amount of damages had by consent been left to him. We believe a jury would have given ten times the amount. Further, we believe that the exceedingly small number of actions tried under the last Common Law Procedure Act by judges sitting alone, without the intervention of juries, is some test of the feeling of the public on this subject. We had intended to notice several other interesting points in the Law of Damages in actions for torts, particularly the proceedings under the Lands Clauses' Consolidation Act, and the 9 & 10 Victoria, cap. 93; the damages in trover, where the status of the article converted has been changed, and where several parties are liable for the conversion. Want of space, however, forbids our doing more than referring our readers to Mr. Mayne's treatise on these points (see pp. 39, 207, 214, 2424252, and 294), where these matters are ably handled. There is one other point on which we must quote Mr. Mayne :-"In fact,” he says at p. 37, “the whole law upon the subject of damages in the case of continuing nuisances or trespasses seems in a very unsatisfactory state. Suppose the defendant to have built a house on the plaintiff's ground, this is a continuing trespass ; and as long as it lasts, the plaintiff may bring fresh actions, and obtain fresh damages. Indeed, he must do so, because it would appear each action can only reimburse him for the loss sustained up to its commencement. The defendant cannot protect himself against this succession of attacks, because, even if it were his desire, it is not in his power to enter the plaintiff's land, and put an end to the nuisance himself. The fair rule in such a case would be, to give the plaintiff such damages as would compensate him for

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