See also:

• DAMAGES (through O. Fr. damage, mod. Fr. dommage, from Lat. damnum, loss)

DAMAGES (through O. Fr. damage, mod. Fr. dommage, from See also:

• LAT

Lat. damnum, loss)  , the See also:

• COMPENSATION (from Lat. compensare, to weigh one thing against another)

compensation which a See also:

• PERSON, OFFENCES AGAINST THE

person who has suffered a legal wrong is by See also:

• LAW
• LAW (0. Eng. lagu, M. Eng. lawe; from an old Teutonic root lag, " lie," what lies fixed or evenly; cf. Lat. lex, Fr. loi)
• LAW, JOHN (1671—1729)
• LAW, WILLIAM (1686-1761)

law entitled to recover from the person responsible for the wrong . Loss caused by an See also:

• ACT (Lat. actus, actum)

act which is not a legal wrong (damnum sine injuria) is not recoverable, e.g. where a See also:

• FATHER

father loses a See also:

• YOUNG
• YOUNG, A
• YOUNG, ARTHUR (1741-1820)
• YOUNG, BRIGHAM (1801-1877)
• YOUNG, CHARLES MAYNE (1777–1856)
• YOUNG, EDWARD (1683–1765)
• YOUNG, JAMES (1811-1883)
• YOUNG, THOMAS (1773-1829)

young See also:

• CHILD
• CHILD, FRANCIS JAMES (1825-1896)
• CHILD, L
• CHILD, LYDIA MARIA (1802-1880)
• CHILD, SIR FRANCIS (1642-1713)
• CHILD, SIR JOHN (d. 1690)
• CHILD, SIR JOSIAH (163o - 1699)

child by the See also:

• NEGLIGENCE (Lat. negligentia, from negligere, to neglect, literally " not to pick up ")

negligence of a third party . The principle of compensation in law makes its first See also:

• APPEARANCE (from Lat. apparere, to appear)

appearance as a substitute for See also:

• PERSONAL

personal See also:

• RETALIATION

retaliation . In See also:

• PRIMITIVE

primitive law some-thing of the nature of the Anglo-Saxon wer-gild, or the irocvtit of the Iliad, appears to be universal . It marks out with See also:

• GREAT

great minuteness the measure of the compensation appropriate to each particular See also:

• CASE
• CASE, JOHN (d. 1600)

case of personal injury . And there is a resemblance between the legal compensation, as it may be called, and the compensation which an injured person, seeking his own remedy, would be likely to exact for himself . In such a See also:

• SYSTEM

system the two entirely different See also:

• OBJECTS

objects of personal See also:

• SATISFACTION (Lat. salisfacerc, to satisfy)

satisfaction and criminal See also:

• PUNISHMENT (from Lat. punire, to punish, from poena, punishment, Gr. 7rocvil)

punishment are not clearly separated, and in fact, criminal and See also:

• CIVIL

civil remedies were administered in the same proceeding . Under See also:

• MODERN

modern systems of law, the See also:

• OBJECT

object of legal compensation is to See also:

• PLACE (through Fr. from Lat. platea, street; Gr. IrAar6s, wide)

place the injured person as nearly as possible in the situation in which he would have been but for the injury; and the See also:

• CON

con-trolling principle is that compensation should be determined so far as possible by the actual amount of the loss sustained . In See also:

• ENGLAND
• ENGLAND, THE CHURCH OF

England, civil proceedings for reparation and criminal proceedings for punishment are with few exceptions carefully kept See also:

• SEPARATE

separate . In See also:

• SCOTLAND
• SCOTLAND, CHURCH OF
• SCOTLAND, EPISCOPAL CHURCH OF

Scotland, pursuit of the two kinds of remedies in the same proceeding is possible but very rare; but in See also:

• FRANCE
• FRANCE, ANATOLE (1844– )

France and other See also:

• EUROPEAN

European states it is lawful and usual in the case of those delicts which are also punishable criminally . In the law of England the two See also:

• HISTORICAL

historical systems of See also:

• COMMON

common law and See also:

• EQUITY (Lat. aequitas)

equity viewed compensation or reparation from two different points of view . The principle of the common law was that the amount of every injury might be estimated by pecuniary valuation .

The See also:

• IDEA (Gr. Ibia, connected with i&eiv, to see; cf. Lat. species from specere, to look at)

idea was no doubt derived from the old tariffs of were, bot and wile, in which the valuations were elaborate . Until 1858 (See also:

• CAIRNS
• CAIRNS, HUGH MC CALMONT CAIRNS, 1ST EARL (1819-1885)
• CAIRNS, JOHN (1818–1892)

Cairns' Act) courts of equity had no See also:

• DIRECT

direct See also:

• JURISDICTION
• JURISDICTION, CRIMINAL LAW, DIVORCE

jurisdiction to See also:

• AWARD (from O. Fr. ewart, or esguart, cf. " reward ")

award See also:

• DAMAGES (through O. Fr. damage, mod. Fr. dommage, from Lat. damnum, loss)

damages, and their business was to place the injured party in the actual position to which he was entitled (restitutio ad integrum) . This difference comes out most clearlyin cases of See also:

• BREACH (Mid. Eng. breche, derived from the common Teutonic root brec, which appears in " break," Ger. brechen, &c.)

breach of See also:

• CONTRACT
• CONTRACT (Lat. contract us, from contrahere, to draw together, to bind)

contract . The common law, with a few partial exceptions, could do no more than compel the defaulter to make See also:

• GOOD, JOHN MASON (1764-1827)

good the loss of the other party, by paying him an ascertained sum of See also:

• MONEY

money as damages . Equity, recognizing the fact that See also:

• COMPLETE

complete satisfaction was not in all cases to be obtained by See also:

• MERE
• MERE, ADALBERT (1838-1909)

mere money See also:

• PAYMENT (Fr. paiement, from payer, to pay; Lat. pacare, to appease, pax, peace)

payment, compelled those who See also:

• BROKE, or BROOKE, ARTHUR (d. 1563)
• BROKE, SIR PHILIP BOWES VERE, BART

broke certain classes of contracts specifically to perform them, and in the case of acts or defaults not amounting to breach of contract, on satisfactory See also:

• PROOF (in M. Eng. preove, proeve, preve, &°c., from O. Fr . prueve, proeve, &c., mod. preuve, Late. Lat. proba, probate, to prove, to test the goodness of anything, probus, good)

proof that a wrong was contemplated, would interfere to prevent it by See also:

• INJUNCTION (from Lat. injungere, to fasten, or attach to, to lay a burden or charge on, to enjoin)

injunction; while at common law, no See also:

• ACTION

action could be brought until the injury was accomplished, and then only pecuniary damages could be obtained . Since the Judicature Acts this distinction has ceased and the appropriate remedy may be awarded in any See also:

• DIVISION (from Lat. dividere, to break up into parts, separate)

division of the High See also:

• COURT
• COURT (from the O. Fr. court, Late Lat. cortis, curtis, a popular form of class. Lat. cohors, gen. cohortis; the mod. Fr. form tour is due to the influence of the Lat. curia, the word used in medieval documents to translate " court " in the feudal sense)
• COURT, ANTOINE (1696-176o)

Court of See also:

• JUSTICE (Lat. justitia)

Justice . Under the common law damages were always assessed by a See also:

• JURY

jury . Under the existing See also:

• PROCEDURE (Fr. procedure, from Lat. procedere, to go for-ward)

procedure in England they may be assessed (1) by a jury under the directions of a See also:

• JUDGE (Lat. judex, Fr. juge)

judge; (2) by a judge alone or sitting with assessors; (3) by a See also:

• REFEREE

referee, See also:

• OFFICIAL (Late Lat. QJicialis, for class. Lat. apparitor, from officium, office, duty)

official or See also:

• SPECIAL

special, or officer of the courts with or without the assistance of See also:

• MERCANTILE (or COMMERCIAL) AGENCIES

mercantile or other assessors; (4) by a consensual tribunal such as an arbitrator or valuer selected by the parties . Whatever the mode of See also:

• ASSESSMENT, (from Lat. assessare, to sit beside, to judge)

assessment, it is subject to See also:

• REVIEW (Fr. revue, from revoir, to see again, Lat. re and videre)

review if the assessors have clearly mistaken the proper measure of damage . In the case of assessment by a jury, the See also:

• VERDICT (O. Fr. verdit, Lat. vere dictum, truly said, used in Late Latin in one word with its present significance)

verdict may be set aside because the damages are clearly excessive or palpably insufficient, or arrived at by some irregular conduct, e.g. by setting down the sum which each juryman would give and dividing the result by twelve . The appellate court, however, cannot, without the consent of the parties, itself See also:

• FIX, THEODORE (180o-1846)

fix the amount of damages in a case which has been submitted to a jury (See also:

• WATT, JAMES (1736-1819)

Watt v . Watt, 1905, See also:

• APPEAL

Appeal Cases 115) .

The courts have gradually evolved certain rules or principles for the proper assessment of damages, although extreme difficulty is found in their application to See also:

• CONCRETE
• CONCRETE (Lat. concretes, participle of concrescere, to grow together)

concrete cases . A distinction is See also:

• DRAWN

drawn between See also:

• GENERAL
• GENERAL (Lat. generalis, of or relating to a genus, kind or class)

general and special :See also:

• EA(nar...), (p.s„,.,.)
• EA(psr...), (p, „...)• (pqr...)

ea' damages . (1) General damage is that implied by law damages. as necessarily flowing from the breach of right, and requiring no proof . (2) Special damage is that in fact caused by the wrong . Under existing practice this See also:

• FORM (Lat. forma)

form of damage cannot be recovered unless it has been specifically claimed and proved, or unless the best available particulars or details have been before trial communicated to the party against whom it is claimed . Contracts.—" The law imposes or implies a See also:

• TERM

term that upon breach of contract damages must be paid." The general tendency of legal decisions in cases of contract is (i.) to make the amount of damages which may be awarded a See also:

• MATTER

matter of legal certainty, (ii.) to leave to a jury or like tribunal little more to do than find the facts, (iii.) and to revise the assessment if it is clear that it has been made in disregard of the terms of the contract or of the natural and direct consequences of the breach . The measure of damage, general speaking, is the sum necessary to place the aggrieved party in the same position so far as money will do it as if the contract had been performed . If the breach is proved, but the person complaining has suffered no real damage, he is entitled to have his legal right recognized by an award of what are called nominal damages, i.e. a sum just sufficient to carry a See also:

• JUDGMENT

judgment in his favour on the infraction of his rights . Nominal damages, it will therefore be seen, are not the same as " small damages." He is, however, also entitled to prove and recover the special or particular damage lawfully attributable to the breach . Where the contract is to pay a fixed sum of money or liquidated amount, the measure of damages for non-payment is the sum agreed to be paid and See also:

• INTEREST

interest thereon at the See also:

• RATE

rate stipulated in the contract or recognized by law . The law is the same in Scotland and in France (Civil See also:

• CODE (Lat. codex)

Code, See also:

• ART

art . 1153) .

In some contracts the parties themselves fix the sum to be paid as damages if the contract is not fulfilled . These damages are described as liquidated, in Scots law stipulated or estimated . It would be supposed that the sum thus fixed would be the proper damages to be awarded . And under the See also:

• FRENCH
• FRENCH, DANIEL CHESTER (1850– )
• FRENCH, NICHOLAS (1604-1678)

French Civil Code (arts . 1152, 11'53, 1780) the stipulation of the parties as to the damages to be paid for breach of a stipulation other than for paying a sum of money is binding on the courts .. But in England, Scotland and the See also:

• UNITED

United States, courts disregard the words used, and inquire into the real nature of the transaction in See also:

• ORDER
• ORDER (through Fr. ordre, for earlier ordene, from Lat. ordo, ordinis, rank, service, arrangement; the ultimate source is generally taken to be the root seen in Lat. oriri, rise, arise, begin; cf. " origin ")
• ORDER, HOLY

order to see whether the sum fixed is to be treated as ascertained damage or as a See also:

• PENALTY (Lat. poena, punishment)

penalty to be held in terrorem over the defaulter, and in the latter case, notwithstanding the stipulation, will require proof of the actual loss . In See also:

• KEMBLE
• KEMBLE, JOHN MITCHELL (1807-1857)

Kemble v . See also:

• FARREN, ELIZABETH (c. 1759-1829)
• FARREN, WILLIAM (1786-1861)

Farren (1829, 6 See also:

• BINGHAM, JOSEPH (1668-1723)

Bingham, 141), a contract between a manager and an actor provided that for a breach of any of the stipulations therein, the sum of £See also:

• I000

I000 should be payable by the defaulter, not as a penalty, but as liquidated and ascertained damages . Yet, the court, observing that under the stipulations of the contract the sum of I000, if it were taken to be liquidated damages, might become payable for mere non-payment of a trifling sum, held that it was not fixed as damages, but as a penalty only . The case in which an agreed sum is most usually treated as a penalty is a See also:

• BOND
• BOND, SIR EDWARD AUGUSTUS (1815-1898)

bond to pay a fixed sum containing a See also:

• CONDITION (Lat. condicio, from condicere, to agree upon, arrange; not connected with conditio, from condere, conditum, to put together)

condition that it shall be void if certain acts are done or a certain smaller sum paid . Another case is where a single lump sum is fixed as the liquidated amount of damage to be paid for doing or failing to do a number of different things of very varying degrees of importance (See also:

• ELPHINSTONE, MOUNTSTUART (1779-1859)
• ELPHINSTONE, WILLIAM (1431-1514)

Elphinstone v . Monkland See also:

• IRON [symbol Fe, atomic weight 55.85 (0=16)]

Iron Co., 1887, 11 A.C .

333) . But the courts have accepted as creating a contractual measure of damage a stipulation to finish See also:

• SEWERAGE

sewerage See also:

• WORKS

works by a given See also:

• DAY (O. Eng. dreg, Ger. Tag; according to the New English Dictionary, " in no way related to the Lat. dies")
• DAY, JOHN (1574-1640?)
• DAY, THOMAS (1748-1789)

day (Law v . See also:

• REDDITCH

Redditch See also:

• LOCAL

Local See also:

• BOARD (O. Eng. bord)

Board, 1892, 1 Q.B . 127); or to complete See also:

• TORPEDO

torpedo boats within a limited See also:

• TIME (0. Eng. Lima, cf. Icel. timi, Swed. timme, hour, Dan. time; from the root also seen in " tide," properly the time of between the flow and ebb of the sea, cf. O. Eng. getidan, to happen, " even-tide," &c.; it is not directly related to Lat. tempus)
• TIME, MEASUREMENT OF
• TIME, STANDARD

time for a See also:

• FOREIGN

foreign See also:

• GOVERNMENT
• GOVERNMENT (0. Fr. governement, mod. gouvernement, O. Fr. governer, mod. gouverner, from Lat. gubernare, to steer a ship, guide, rule; cf. Gr. xv(3epvav)

government (See also:

• CLYDEBANK

Clydebank See also:

• ENGINEERING

Engineering Co. v . Yzquierda, 1905, A.C . 6) . In this last case the law lords indicated that the See also:

• PROVISION (Lat. provisio)

provision of an agreed sum was peculiarly appropriate in view of the difficulty of showing the exact damage which a See also:

• STATE
• STATE, GREAT OFFICERS OF

state sustains by non-delivery of a warship . Where the damage is not liquidated or agreed it is assessed to upon See also:

• EVIDENCE (Lat. evidentia, evideri, to appear clearly)

evidence as to the actual loss naturally and directly flowing from the breach of contract . In contracts for the See also:

• SALE
• SALE, GEORGE (c. 1697-1736)
• SALE, SIR ROBERT HENRY (1782—1845)

sale of goods the measure of damages is fixed by See also:

• STATUTE

statute . Where the buyer wrongfully refuses or neglects to accept and pay for, or the seller wrongfully neglects or refuses to deliver the goods, the measure is the estimated loss directly and naturally resulting in the See also:

• ORDINARY (med. Lat. ordinarius, Fr. ordinaire)

ordinary course of events from the buyer's or seller's breach of contract . Where there is an available See also:

• MARKET (Lat. mercatus, trade or place of trade)

market for the goods in question, the measure of damages is prima facie to be ascertained by the difference between the contract See also:

• PRICE
• PRICE, BARTHOLOMEW (1818–1898)
• PRICE, BONAMY (1807-1888)
• PRICE, RICHARD (1723-1791)

price and the market or current price at the time or times when the goods ought to have been accepted or delivered, or if no such time was fixed for See also:

• ACCEPTANCE (Lat. acceptare, frequentative form of accipere, to receive)

acceptance or delivery, then at the time of refusal to accept or deliver (Sale of Goods Act 1893, §§ 50, 51)• Where there is no market, the value is fixed by the price of the nearest available substitute . Where the sufferer, at the See also:

• REQUEST, LETTERS OF

request of the person in See also:

• DEFAULT (Fr. defaut, from defailler, to fail, Lat. fallere)

default, postpones See also:

• PURCHASE

purchase or sale, any in-creased loss thereby caused falls on the defaulter .

If the buyer, before the time fixed for delivery, has resold the goods to a sub-vendor, he cannot claim against his own vendor any damages which the sub-vendor may recover against him for breach of contract, because he ought to have gone into the market and See also:

• PURCHASED

purchased other goods . But this is subject to modification in cases falling within the See also:

• RULE

rule in See also:

• HADLEY
• HADLEY, ARTHUR TWINING (1856– )
• HADLEY, JAMES (1821–1872)

Hadley v . Baxendale (1854, 9 See also:

• EXCHEQUER

Exchequer, 341) . But trouble and expense incurred by the seller of finding a new purchaser or other goods may be taken See also:

• ACCOUNT
• ACCOUNT (through O. Fr. acont, Late Lat. comptum, cornputare, to calculate)

account of in assessing the damages . Where the goods delivered are not as contracted the buyer may as a rule See also:

• SUE, EUGENE [JosEPH MARIE] (1804—1857)

sue the seller for a breach of See also:

• WARRANTY

warranty, or set it up as reduction of price . Where the warranty is of quality the loss is prima facie the difference between the value of the goods delivered when delivered and the value which they would have then had if they had answered to the warranty (Sale of Goods Act 1893, § 53) . In an See also:

• AMERICAN

American case, where a person had agreed with a boarding-See also:

• HOUSE
• HOUSE (O. Eng. hiss, a word common to Teutonic languages, cf. Dut. huis, Ger. Haus; in Gothic it is only found in gudhiss, a temple; it may be ultimately connected with the root of " hide," conceal)

house keeper for a See also:

• YEAR

year, and quitted the house within the time, it was held that the measure of damages was not the price stipulated to be paid, but 'only the loss caused by the breach of contract . In contracts to marry, a special class ofconsiderations is recognized, and the jury in assessing damages will take See also:

• NOTICE

notice of the conduct of the parties . The social position and means of the See also:

• DEFENDANT

defendant may be given in evidence to show what the See also:

• PLAINTIFF

plaintiff has lost by the breach of contract . On a breach of contract to replace stock See also:

• LENT (0. Eng. lenclen, " spring," M. Eng. lenten, lente, lent; cf. Dut. lente, Ger. Lenz, " spring," 0. H. Ger. lenzin, lengizin, lenzo, probably from the same root as " long " and referring to " the lengthening days ")

lent, the measure of damages is the price of the stock on the day when it ought to have been delivered, or on the day of trial, at the plaintiff's See also:

• OPTION (Lat. optio, choice, choosing, optare, to choose)

option . In contracts for the sale of realty, the measure of damage for breach by the vendor is the amount of any See also:

• DEPOSIT (Lat. depositurn, from deponere, to lay down, to put in the care of)

deposit paid by the would-be purchaser and of the expenses thrown away . But the purchaser may, in a proper case, obtain specific performance, and if he has been cheated may obtain damages in an action for deceit .

Breaches of See also:

• TRUST

trust are in a sense distinct from breaches of contract, as they See also:

• FELL
• FELL, JOHN (1625-1686)

fell under the jurisdiction of courts of equity and not of the common law courts . The rule applied was to require a. defaulting trustee to make good to the beneficiaries any loss flowing from a breach of trust and not to allow him to set off against this liability any gain to the trust fund resulting from a different breach of trust or from good management (Lewin on See also:

• TRUSTS

Trusts, ed . 1904, 1146) . In estimating the proper amount to be assessed as damages for a breach of contract, it is not permissible to include every loss caused by the act or default upon which the claim for damages is based . The damage to be awarded must be that fairly and naturally arising from the breach under ordinary circumstances or the special circumstances of the particular contract, or in other words, which may reasonably be supposed to have been in the contemplation of the parties at the time of making the contract . The See also:

• CHIEF (from Fr. chef, head, Lat. caput)

chief authority for this rule is the case of Hadley v . Baxendale (1854, 9 Exch . 341), which has been accepted in Scotland and the United States and through-out the See also:

• BRITISH

British See also:

• EMPIRE

empire, and often differs little, if at all, from the rule adopted in the French civil code (art . 1150) . In that case damages were sought for the loss of profits caused by a See also:

• STEAM
• STEAM (0. Eng. steam, vapour, smoke, cf. Du. steam; the origin is unknown)

steam See also:

• MILL
• MILL (O. Eng. mylen, later myln, or miln, adapted from the late Lat. molina, cf. Fr. moulin, from Lat. mola, a mill, molere, to grind; from the same root, mol, is derived " meal;" the word appears in other Teutonic languages, cf. Du. molen, Ger. muhle)
• MILL, JAMES (1773-1836)
• MILL, JOHN (c. 1645–1707)
• MILL, JOHN STUART (1806-1873)

mill being kept idle, on account of the delay of the defendants in sending a new See also:

• SHAFT
• SHAFT (O. Eng., sceaft, from scafan, to shave; the word is common to Teutonic languages)

shaft which they had contracted to make . The court held the damage to be too remote, and stated the proper rule as follows: " Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and See also:

• REASON (Lat. ratio, through French raison)

reason-ably be considered either arising naturally, i.e. according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach of it . Now if the special circumstances under which the contract was actually made were communicated by the plaintiffs to the defendants, and thus known to both parties, the damages resulting from such contract which they would reasonably contemplate would be the amount of injury which would ordinarily flow from a breach of contract under these special circumstances so known and communicated .

But on the other See also:

• HAND
• HAND (a word common to Teutonic languages; cf. Ger. Hand, Goth. handus)
• HAND, FERDINAND GOTTHELF (1786-185r)

hand, if those special circumstances were wholly unknown to the party breaking the contract, he at the most could only be supposed to have had in his mind the amount of injury which would arise generally, and in the great multitude of cases not affected by any special circumstances, from such breach of contract." L The rule is, however, only a general See also:

• GUIDE (in Mid. Eng. gyde, from the Fr. guide; the earlier French form was guie, English " guy," the d was due to the Italian form guida; the ultimate origin is probably Teutonic, the word being connected with the base seen in O. Eng. witan, to know)

guide, and does not obviate the See also:

• NECESSITY (Lat. necessitas)

necessity of inquiring in each case what are the natural or contemplated damages . In an action by the proprietor of a See also:

• THEATRE (BEarpov, " a place for seeing," from OeacOae)

theatre, it was alleged that the defendant had written a See also:

• LIBEL

libel on one of the plaintiff's singers, whereby she was 1 In the See also:

• INDIAN

Indian Contracts Code (Act xii. of 1872), the rule is thus summarized : " When a contract has been broken, the party who suffers by such breach is entitled to receive from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew when they made the contract to be likely to result from the breach of it . Such compensation is not to he given for any remote or indirect loss or damage sustained by reason of the breach . . . . In estimating the loss or damage arising from a breach of contract, the means of remedying the inconvenience caused by the non-performance must be taken into account " (§ 73) . deterred from appearing on the See also:

• STAGE (Fr. 6/age; from Lat. stare, to stand)

stage, and the plaintiff lost his profits; such loss was held to be too remote to be the ground of an action for damages . In Smeed v . Foord (1 See also:

• ELLIS (originally SHARPE), ALEXANDER JOHN (1814-189o)
• ELLIS, GEORGE (1753-1815)
• ELLIS, ROBINSON (1834- )
• ELLIS, SIR HENRY (1777-1869)
• ELLIS, WILLIAM (1794 – 1872)

Ellis and Ellis, 602), the defendant contracted to deliver a threshing-See also:

• MACHINE
• MACHINE (through Fr. from Lat. form machina of Gr. µnxavil)

machine to the plaintiff, a See also:

• FARMER, RICHARD (1735–1787)

farmer, knowing that it was needed to thresh the See also:

• WHEAT
• WHEAT (Triticum)

wheat in the See also:

• FIELD (a word common to many West German languages, cf. Ger. Feld, Dutch veld, possibly cognate with O.E. f olde, the earth, and ultimately with root of the Gr. irAaror, broad)
• FIELD, CYRUS WEST (1819-1892)
• FIELD, DAVID DUDLEY (18o5-1894)
• FIELD, EUGENE (1850-1895)
• FIELD, FREDERICK (18o1—1885)
• FIELD, HENRY MARTYN (1822-1907)
• FIELD, JOHN (1782—1837)
• FIELD, MARSHALL (183 1906)
• FIELD, NATHAN (1587—1633)
• FIELD, STEPHEN JOHNSON (1816-1899)
• FIELD, WILLIAM VENTRIS FIELD, BARON (1813-1907)

field . Damages were sought for injury done to the wheat by See also:

• RAIN (O.E. regn; the word is common to Teutonic languages, cf. Ger. Regen, Swed. and Dan. regn; it has been connected with Lat. rigare, to wet, Gr. 13pixeav)

rain in consequence of the machine not having been delivered in time, and also for a fall in the market before the See also:

• GRAIN (derived through the French from Lat. granum, seed, from an Aryan root meaning " to wear down," which also appears in the common Teutonic word " corn ")

grain could be got ready . It was held that the first claim was good, as the injury might have been anticipated, but that the second was See also:

• BAD, BCD

bad . When, through the negligence of a railway See also:

• COMPANY

company in delivering See also:

• BALES [BALESIUS], PETER (1547–1610?)

bales of See also:

• COTTON
• COTTON (Fr. coton; from Arab. qutun)
• COTTON, CHARLES (163o–1687)
• COTTON, GEORGE EDWARD LYNCH (1813–1866)
• COTTON, JOHN (1585–1652)
• COTTON, SIR ROBERT BRUCE

cotton, the plaintiffs, having no cotton to See also:

• WORK

work with, were obliged to keep their workmen unemployed, it was held that the See also:

• WAGES (the plural of " wage," from Late Lat. wadium, a pledge, O. Fr. wagier, gagier)

wages paid and the profits lost were too remote for damages . On the other hand, where the defendant failed to keep funds on hand to meet the drafts of the plaintiff, so that a draft was returned dishonoured, and his business in consequence was for a time suspended and injured, the plaintiff was held entitled to recover damage for such loss .

The rule that the contract furnishes the measure of the damages does not prevail in the case of unconscionable, i.e. unreasonable, absurd or impossible contracts . The old school-See also:

• BOOK

book juggle in geometrical progression has more than once been before the courts as the ground of an action . Thus, when a See also:

• MAN
• MAN, ISLE OF (anc. Mona)

man agreed to pay for a See also:

• HORSE (a word common to Teutonic languages in such forms as hors, hros, ros; cf. the Ger. ross)

horse a See also:

• BARLEY (Hordeum sativum)

barley-See also:

• CORN (a common Teutonic word; cf. Lat. granum, seed, grain)
• CORN (fromm Lat. corms, horn)

corn per See also:

• NAIL (O. Eng. naegal, cf. Dutch, Ger., Swed. nagel; the word is also related to Lat. unguis, Gr. ovu, Sans. nakhas)

nail, doubling it every nail, and the amount calculated as 32 nails was 500 quarters of barley, the judge directed the jury to disregard the contract, and give as damages the value of the horse . And when a defendant had agreed for £5 to give the plaintiff two grains of See also:

• RYE

rye on See also:

• MONDAY (in O.E. Monandaeg, the moon's day, a translation of the Late Lat. Lunae dies, from which the French lundi is taken)

Monday, four on the next Monday,' and so on doubling it every Monday, it was contended that the contract was impossible, as all the rye in the See also:

• WORLD

world would not suffice for it; but one of the See also:

• JUDGES, THE BOOK OF

judges said that, though foolish, it would hold in law, and the defendant ought to pay something for his folly . And when a man had promised £r000 to the plaintiff if he should find his See also:

• OWL (O. Eng. Ule, Swed. Uggla, Ger. Eule—all allied to Lat. Ulula, and evidently of imitative origin)

owl, the jury were directed to mitigate the damages . Interest is recoverable as damages at common law only upon mercantile securities, such as bills of See also:

• EXCHANGE

exchange and promissory notes or where a promise to pay interest has been made in See also:

• EXPRESS (through the French from the past participle of the Lat. exprimere, to press out, by transference used of representing objects in painting or sculpture, or of thoughts, &c. in words)

express terms or may be implied from the usage of See also:

• TRADE (O. Eng. trod, footstep, from tredan, to tread; in M. Eng. the forms teed, trod and trade appear, the last in the sense of a beaten track)
• TRADE, BOARD OF

trade or other circumstances [See also:

• MAYNE, JASPER (1604-1672)

Mayne, Damages (7th ed.) 166] . Under the Civil Procedure Act 1833, the jury is allowed to give interest by way of damages on debts or sums payable at a certain time, or if not so payable, from the date of demand in See also:

• WRITING
• WRITING (the verbal noun of " to write," O. Eng. writan, to inscribe)

writing, and in actions on policies of See also:

• INSURANCE

insurance, and in actions of See also:

• TORT (Fr. for wrong, from Lat. tortus, twisted, participle of torquere)

tort arising out of See also:

• CONVERSION (Lat. conversio, from convertere, to turn or ,change)

conversion or seizure of goods . In the United States, interest is in the discretion of the court, and is made to depend on the equity of the case . In both England and See also:

• AMERICA

America See also:

• COMPOUND
• COMPOUND (from Lat. componere, to combine or put together)

compound interest, or interest on interest, appears to have been regarded with the horror that formerly attached to See also:

• USURY

usury . See also:

• LORD
• LORD (O. Eng. hldford, i.e. hldfweard, the warder or keeper of bread, hlIf, loaf; the word is not represented in any other Teutonic language)
• LORD, JOHN (1810-1894)

Lord See also:

• ELDON, JOHN SCOTT

Eldon would not recognize as valid an agreement to pay compound interest . And See also:

• CHANCELLOR (M. Eng. and Anglo-Fr. canceler, chanceler, Fr. chancelier, Lat. cancellarius)

Chancellor See also:

• KENT
• KENT, EARLS AND DUKES OF
• KENT, JAMES (1763-1847)
• KENT, WILLIAM (1685-1748)

Kent held that compound interest could not be taken except upon a special agreement made after the See also:

• SIMPLE

simple interest became due . In Scotland compound interest is not allowed by way of damages .

Torts.-In actions arising otherwise than from breach of contract (i.e. of tort, delict or quasi-delict), the principles applied to the assessment of damage in cases arising ex conlractu are generally applicable (The Notting See also:

• HILL
• HILL (0. Eng. hyll; cf. Low Ger. hull, Mid. Dutch hul, allied to Lat. celsus, high, collis, hill, &c.)
• HILL, A
• HILL, AARON (1685-175o)
• HILL, AMBROSE POWELL
• HILL, DANIEL HARVEY (1821-1889)
• HILL, DAVID BENNETT (1843–1910)
• HILL, GEORGE BIRKBECK NORMAN (1835-1903)
• HILL, JAMES J
• HILL, JOHN (c. 1716-1775)
• HILL, MATTHEW DAVENPORT (1792-1872)
• HILL, OCTAVIA (1838– )
• HILL, ROWLAND (1744–1833)
• HILL, SIR ROWLAND (1795-1879)

Hill, 1884, 9 P.D . 105); but from the nature of the case less precision in assessment is attain-able . The remoteness of the damage claimed is a ground for excluding it from the assessment . In some actions of tort the damages can be calculated with exactness just as in cases of contract, e.g. in most cases of interference with rights of See also:

• PROPERTY

property or injury to property . Thus, for wrongful dispossession from a See also:

• PLANTATION (Lat. plantare, to plant)

plantation (in See also:

• SAMOA

Samoa) it was held that the measure of damage was the See also:

• ANNUAL

annual value of the produce of the lands when wrongfully ' Quolibet alio See also:

• DIE
• DIE (Fr. de, from Lat. datum, given)

die lunae, which was translated by some every Monday, and by others every other Monday . The amount in the latter case would have been 125 quarters, in the former 524,288,000 quarters.seized, less the cost of management, and that the wilful See also:

• CHARACTER (Gr. xapareri7p, from xap&crew, to scratch)

character of the seizure did not justify the infliction of a penalty over and above the loss to the plaintiff (McArthur v . See also:

• CORNWALL

Cornwall, 1892, A.C . 75) . Where minerals are wrongfully severed and carried away, the damage is assessed by calculating the value of the See also:

• MINERAL

mineral as a See also:

• CHATTEL (for derivation see CATTLE)

chattel and deducting the reasonable expense of getting it . But where the interference with property, whether real or personal, is attended by circumstances of See also:

• AGGRAVATION (from Lat. ad, increasing, and gravis, heavy)

aggravation such as See also:

• CRIME (Lat. crimen, accusation)

crime or See also:

• FRAUD (Lat. fraus, deceit)

fraud or wanton insult, it is well established that additional damages may be awarded which in effect are penal or vindictive . In actions for injuries to the person or to reputation, it is difficult to make the damages a matter for exact calculation, and it has been found impossible or inexpedient by the courts to prevent juries from awarding amounts which operate as a punishment of the delinquent rather than as a true assessment of the reparation due to the sufferer . And while a bad See also:

• MOTIVE (from Lat. movere, to move)

motive (malice) is seldom enough to give a cause of action, proof of its existence is a potent inducement to a jury to swell the assessment of damages, as evidence of bad character may induce them to reduce the damages to a derisory amount .

In the case of injuries to the person caused by negligence, the tribunal considers, as See also:

• PART

part of the general damage, the actual See also:

• PAIN (from Lat. poena, Gr. robin, penalty, that which must be paid: O. Fr. peine)
• PAIN, BARRY (1867– )

pain and suffering, including See also:

• NERVOUS

nervous See also:

• SHOCK, or COLLAPSE

shock (but not wounded feelings) and the permanent or temporary character of the injury, and as special damage the loss of time and employment during recovery and the cost of cure . It is difficult by any arithmetical calculation to value pain and suffering; nor is it easy to value the effect of a permanent injury; and in the Workmen's Compensation Act and Employers' Liability Act, an See also:

• ATTEMPT (Lat. adtemptare, attentare, to try)

attempt has been made in the case of workmen to assess by reference to the earnings of the injured person . In the case of such wrongs as See also:

• ASSAULT (from Lat. ad, to or on, and saltare, to leap)

assault, See also:

• ARREST (Fr. arrester, arreeter, to stop or stay)

arrest or See also:

• PROSECUTION

prosecution, the motives of the defendant naturally affect the amount of general damage awarded, even when not essential elements in the case, and the damages are " at large." Any other rule would enable a man to distribute blows as he can utter curses at a statutory See also:

• TARIFF (adapted in English from the French; the word comes through the Spanish tarifa, a list or schedule of prices, from the Arabic, ta'rifa, information, an inventory, 'arf, know-ledge)

tariff of so much a curse, according to his See also:

• RANK (O.Fr. rant or rent, mod. rang, generally connected with the O.E. and O.H.G. bring, a ring)

rank . This position was strongly asserted in the cases arising out of the celebrated " General Warrants " (1763) in the time of Lord See also:

• CAMDEN
• CAMDEN, CHARLES PRATT, 1ST EARL (1714-1794)
• CAMDEN, JOHN JEFFREYS PRATT, 2ND EARL
• CAMDEN, WILLIAM (1551-1623)

Camden, who is reported in one case to have said, " damages are designed not only as a satisfaction to the injured person, but as a punishment to the guilty, and as a proof of the detestation in which the wrongful act is held by the jury." In another case he mentioned the importance of the question at issue, the attempt to exercise arbitrary See also:

• POWER [WILLIAM GRATTAN] TYRONE (1797-1841)

power, as a reason why the jury might give exemplary damages . Another judge, in another case, said " I remember a case when the jury gave £50o damages for knocking a man's See also:

• HAT

hat off; and the court refused a new trial." And he urged that exemplary damages for personal insult would tend to prevent the practice of duelling . The right to give exemplary or punitive or (as they are some-times called) vindictive damages is fully recognized both in England and in the United States, and especially in the following cases . (1) Against the co-See also:

• RESPONDENT (from Lat. respondere, to answer)

respondent in a See also:

• DIVORCE

divorce suit . This right is the same as that recognized at common law in the abolished action of criminal conversation, but the damages awarded may by the court be applied for the See also:

• MAINTENANCE (Fr. maintenance, from maintenir, to maintain, support, Lat. manu tenere, to hold in the hand)

maintenance and See also:

• EDUCATION

education of the See also:

• CHILDREN, LAW RELATING TO

children of the See also:

• MARRIAGE

marriage or the maintenance of the offending wife . (2) In actions of trespass to See also:

• LAND

land where the conduct of the defendant has been outrageous . (3) In actions of See also:

• DEFAMATION (from the classical Lat. diffamare, to spread abroad an evil report—the English form in de is taken from the Late Lat. defamare)

defamation spoken or written, attended by circumstances of aggravation, and the analogous action of malicious prosecution . (4) In the anomalous actions of See also:

• SEDUCTION (from Lat. seducere, to lead astray)

seduction and breach of promise of marriage . In actions for wrongs, as in those ex conlractu, the damages may be general or special .

In a few cases of tort, the action fails wholly if special damage is not proved, e.g. See also:

• SLANDER

slander by imputing to a man vicious, unchaste or immoral conduct, slander of See also:

• TITLE (0. Fr. title, mod. titre, from Lat. titulus)

title to land or goods or See also:

• NUISANCE (through Fr. noisance, nuisance, from Lat. nocere, to hurt)

nuisance . In theory, See also:

• ENGLISH

English law does not recognize " moral or intellectual " damage, such as was claimed by the See also:

• SOUTH
• SOUTH, ROBERT (1634–1716)

South See also:

• AFRICAN

African See also:

• REPUBLIC (Lat. respublica, a commonweal or common-wealth)

Republic after the See also:

• JAMESON (or JAMESONE), GEORGE (c. 1587–1644)
• JAMESON, ANNA BROWNELL (1794-1860)
• JAMESON, LEANDER STARR (1853– )
• JAMESON, ROBERT (1774-1854)

Jameson See also:

• RAID

Raid . The law of Scotland allows a solatium for wounded feelings, as does French law under the name of dommage moral, eprouve See also:

• PAR (Lat. par, equal)

par la partie lesee Bans sa liberte, sa sdrete, son honneur, sa See also:

• CONSIDERATION (from Lat. considerare, to look at closely, examine, generally taken to be from con-, and the base seen in sidus, sideris, a star, the word being supposed to be originally an astrological or astronomical term)

consideration, ses affections legitimes ou dans la jouissance de son patrimoine . Under this See also:

• HEAD (in 0. Eng. heafad; the word is common to Teutonic languages; cf. Dutch hoofd, Ger. Haupt, generally taken to be in origin connected with Lat. caput, Gr. KerbOvi7)
• HEAD, SIR EDMUND WALKER, BART
• HEAD, SIR FRANCIS BOND, BART

head compensation is awarded to widow, child or See also:

• SISTER

sister, for the loss of See also:

• HUSBAND

husband, See also:

• PARENT, SIMON NAPOLEON (1855– )

parent or See also:

• BROTHER

brother, in addition to the actual pecuniary loss (Dalloz, Nouveau Code civil, art . 1382) . Claims of damage for negligence are defeated by proof of what is known as contributory negligence (faute See also:

• COMMUNE (Med. Lat. communia, Lat. communis, common)
• COMMUNE, MEDIEVAL

commune) . In other claims of tort, as already stated, the conduct of the claimant may materially reduce the amount of his damages . In cases of damages to See also:

• SHIPS

ships or See also:

• CARGO (Span. for " loading," from Lat. carries, car)

cargo by collision at See also:

• SEA (in O. Eng. sae, a common Teutonic word; cf. Ger. See, Dutch Zee, &c.; the ultimate source is uncertain)
• SEA, COMMAND OF THE

sea, the rule of the old court of See also:

• ADMIRALTY, HIGH COURT OF

admiralty (derived from the civil law and preserved by the Judicature Acts) is that when both or all vessels are to blame, the whole amount of the loss is divided between them . The rule appears not to apply to cases where See also:

• DEATH

death or personal injury results from the collision (" See also:

• VERA, AUGUSTO (1813-1885)

Vera Cruz," 1884, 14 A.C . 59 . " Bernina," 1888, 13 A.C . 1) .

See also:

• COSTS

Costs.—The costs of a legal proceeding are no longer treated as damages to be assessed by the jury, nor do they depend on any act of the jury . The right to receive them depends on the court, and they are taxed or assessed by its See also:

• OFFICERS

officers (see COSTS) . In a few cases where costs cannot be given, e.g. on compulsory acquisition of land in See also:

• LONDON

London, the assessing tribunal is invited to add to the compensation price the owner's expense in the compensation proceedings . Death.—In English law a right to recover damages for a tort as a general rule was lost on the death of the sufferer or of the delinquent . The cause of action was considered not to survive . This rule differs from that of Scots law (under which the claim for damages arises at the moment of injury and is not affected by the death of either party) . The English rule has been criticized as barbarous, and has been considerably broken in upon by legislation, in cases of taking the goods of another (4 Edw . III., c . 7, 1330), and injuries to real or personal property (3 & 4 Will . IV., c . 42, 1833), but continues in force as to such matters as defamation, malicious prosecution and trespass to the person . By the Fatal Accidents Act 1846 (commonly called Lord See also:

• CAMP (from Lat. campus, field)

Camp-See also:

• BELL
• BELL, ALEXANDER MELVILLE (1819—1905)
• BELL, ANDREW (1753—1832)
• BELL, GEORGE JOSEPH (1770-1843)
• BELL, HENRY (1767-1830)
• BELL, HENRY GLASSFORD (1803-1874)
• BELL, JACOB (1810-1859)
• BELL, JOHN (1691-178o)
• BELL, JOHN (1763-1820)
• BELL, JOHN (1797-1869)
• BELL, ROBERT (1800-1867)
• BELL, SIR CHARLES (1774—1842)

bell's Act), it is enacted that wherever a wrongful act would have entitled the injured person to recover damages (if death had not ensued), the person who in such case would have been liable " shall be liable to an action for damages for the pecuniary loss which the death has caused to certain persons, and although the death shall have been caused under such circumstances as amount in law to See also:

• FELONY (0. Fr. felonie, from felon, a word meaning " wicked," common to Romanic languages, cf. Italian fella, fellone, the ultimate origin of which is obscure, but is possibly connected either with Lat. fel, gall, or fallere, to deceive. The English " fel

felony." The only persons by whom or for whose benefit such an action may be brought are the husband, wife, parent and child (including grandchild and stepchild, but not illegitimate child) of the deceased .

The right of action and the measure of damages are statutory and distinct from the right which the deceased had till he died . It was held in See also:

• OSBORNE

Osborne v . Gillett, 1873, L.R . 8 Ex . 88, and has since been approved (See also:

• CLARK, FRANCIS EDWARD (1851- )
• CLARK, GEORGE ROGERS (1752—1818)
• CLARK, JOHN BATES (1847— )
• CLARK, JOSIAH LATIMER (1822—1898)
• CLARK, SIR ANDREW
• CLARK, SIR JAMES (1788—1870)
• CLARK, THOMAS (1801—1867)
• CLARK, WILLIAM (1770-1838)
• CLARK, WILLIAM GEORGE (1821—1878)

Clark v . London General See also:

• OMNIBUS (Lat. " for all ")

Omnibus Co., 1906, 2 K.B . 648), that no person can recover damages for the death of another wrongfully killed by the act of a third person, unless he claims through or represents the person killed, and unless that person in case of an injury See also:

• SHORT, FRANCIS JOB (1857– )

short of death would have had a good claim to recover damages . In Scotland the law of compensation for breach of contract is substantially the same as in England . In cases of delict or quasidelict, the measure of reparation is a See also:

• FAIR

fair and reasonable compensation for the See also:

• ADVANTAGE

advantage which the sufferer would, but for the wrong, have enjoyed and has lost as a natural and proximate result of the wrong, coupled with a solatium for wounded feelings . The claim for reparation vests as a See also:

• DEBT (Lat. debitum, a thing owed)

debt when it arises and survives to the representatives of the sufferer, and against the representatives of the delinquent . In other words, the See also:

• MAXIM, SIR HIRAM STEVENS (184o- )

maxim See also:

• ECHO (Gr. I'Xw)

echo personalis moritur cum persona does not apply in Scots law; and even in cases of See also:

• MURDER

murder there has always been recognized a right to " assythement." See also Mayne on Damages, 7th ed.; See also:

• SEDGWICK, ADAM (1785-1873)
• SEDGWICK, JOHN (1813–1864)

Sedgwick on Damage; Bell, Principles of Law of Scotland . (W .

F .