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there have been many contradictory decisions, whether the violation of statutes against Sunday traveling is in itself a bar to actions for injuries received in the course of such traveling through defective condition of roads, negligence of railway companies, and the like. In Massachusetts it has been held that a plaintiff in such circumstances cannot recover, although the accident might just as well have happened on a journey lawful for all purposes. These decisions are not generally considered good law, and have been expressly dissented from in some other States.9

It is a rule not confined to actions on contracts that "the plaintiff cannot recover where in order to maintain his supposed claim he must set up an illegal agreement (or illegal conduct) to which he himself has been a party; " but its application to actions of tort is not frequent or normal.1

CHAPTER V.

OF REMEDIES FOR TORTS.

At common law there were only two kinds of redress for an actionable wrong. One was in those cases-exceptional cases according to modern law and practice where it was and is lawful for the aggrieved party, as the common phrase goes, to take the law into his own hands. The other way was an action for damages. Not that a suitor might not obtain, in a proper case, other and more effectual redress than money compensation; but he could not have it from a court of common law. Specific orders and prohibitions in the form of injunctions or otherwise were (with few exceptions, if any) in the hand of the Chancellor alone, and the principles according to which they were granted or withheld were counted among the mysteries of Equity.

Barnes v. Ward, 9 Q. B. 392; Hooker v. Miller, 37 Ia. 613.

8. Bosworth v. Swansey, 10 Met. 363.

9. See Burdick on Torts (3d Ed.),

102; Sutton v. Wauwatosa, 29 Wisc. 21; s. c. Big. Lead. Cas., Torts, 711, 721, note.

1. Burdick on Torts (3d Ed.), 103.

But no such distinctions exist under the system of the Judicature Acts, and every branch of the Court has power to administer every remedy.

Remedies available to a party by his own act alone may be included, after the example of the long-established German usage, in the expressive name of self-help. The right of private defence appears at first sight to be an obvious example of this. But it is not so, for there is no question of remedy in such a case. We are allowed to repel force by force not for the redress of injuries, but for their prevention." It is only when the party's lawful act restores to him something which he ought to have, or puts an end to a state of things whereby he is wronged, or at least puts pressure on the wrong-doer to do him right, that self-help is a true remedy. And then it is not necessarily a complete or exclusive remedy.

The acts of this nature which we meet with in the law of torts are expulsion of a trespasser, retaking of goods 2 by the rightful possessor, distress of cattle damage feasant,3 and abatement of nuisances. Peaceable re-entry upon land where there has been a wronful change of possession might be added to the list; but it hardly occurs in modern experience. Analogous to the right of retaking goods is the right of appropriating or retaining debts under certain conditions; and various forms of lien are more or less analogous to distress. These, however, belong to the domain of contract. In every case alike the right of the party is subject to the rule that no greater force must be used, or damage done to property, than is necessary for the purpose in hand."

Remedies by the act of the law. The most frequent and familiar of these is the awarding of damages. Whenever an actionable wrong has been done, the party wronged is entitled to recover damages. His title to recover is a conclusion of law from the facts determined in the cause. How much he shall recover is a matter of judicial discretion, a

1. See ante, Self-defense.

2. Burdick on Torts, 62.

3. Id., 226.

4. Id., 226.

5 See, generally, as to redress by a party's own act, Cooley on Torts (Students' Ed.), 108-121.

discretion exercised, if a jury tries the cause, by the jury under the guidance of the judge.

Damages may be nominal, ordinary, or exemplary. Nominal damages are a sum of so little value as compared with the cost and trouble of suing that it may be said to have no existence in point of quantity," such as a shilling or a penny, which sum is awarded with the purpose of not giving any real compensation. Such a verdict means one of two things. According to the nature of the case it may be honorable or contumelious to the plaintiff. Either the purpose of the action is merely to establish a right, no substantial harm or loss having been suffered, or else the jury, while unable to deny that some legal wrong has been done to the plaintiff, have formed a very low opinion of the general merits of his case. This again may be on the ground that the harm he suffered was not worth suing for, or that his own conduct had been such that whatever he did suffer at the defendant's hands was morally deserved. The former state of things, where the verdict really operates as a simple declaration of rights between the parties, is most commonly exemplified in actions of trespass brought to settle disputed claims to rights of way, rights of common, and other easements and profits. The other kind of award of nominal damages, where the plaintiff's demerits earn him an illusory sum such as one farthing, is illustrated chiefly by cases of defamation, where the words spoken or written by the defendant cannot be fully justified, and yet the plaintiff has done so much to provoke them, or is a person of such generally worthless character, as not to deserve, in the opinion of the jury, any substantial compensation."

Infringements of absolute rights like those of personal security and property give a cause of action without regard to the amount of harm done, or to there being harm estimable at any substantial sum at all. As Holt, C. J., said, in a

6. Id., 121. As to remedies in equity and admiralty, see Id., 121,

122.

7. Burdick on Torts, 230.

8. Id., 231.

9. See, generally, as to nominal damages, Hale on Damages (2d Ed.), ch. 2.

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celebrated passage of his judgment in Ashby v. White,1 a damage is not merely pecuniary, but an injury imports a damage, when a man is thereby hindered of his right."

On the other hand, there are cases, even in the law of property, where, as it is said, damage is the gist of the action, and there is not an absolute duty to forbear from doing a certain thing, but only not to do it so as to cause actual damage. The right to the support of land as between adjacent owners, or as between the owner of the surface and the owner of the mine beneath, is an example. My neighbor may excavate in his own land as much as he pleases, unless and until there is actual damage to mine; then, and not till then, a cause of action arises for me. Negligence, again, is a cause of action only for a person who suffers actual harm by reason of it. The same rule holds of nuisances. So, in an action of deceit, the cause of action is the plaintiff's having suffered damage by acting on the false statement made to him by the defendant. In all these cases there can be no question of nominal damages, the proof of real damage being the foundation of the plaintiff's right.

In the law of slander some kinds of spoken defamation are actionable without any allegation or proof of special damage (in which case the plaintiff is entitled to nominal damages at least), and others not; while as to written words no such distinction is made.

Ordinary damages are a sum awarded as a fair measure of compensation to the plaintiff, the amount being, as near as can be estimated, that by which he is the worse for the defendant's wrong-doing, but in no case exceeding the amount claimed by the plaintiff himself. Compensation, not restitution, is the proper test.3

One step more, and we come to cases where there is great injury without the possibility of measuring compensation by any numerical rule, and juries have been not only allowed but encouraged to give damages that express indignation

1. 2 Lord Raym. 938, 955. See s. c., 1 Smith's Lead. Cases, *342 and notes.

2. See Burdick on Torts (3d Ed.), 231.

3. Burdick on Torts, 231; Hale on Damages (2d Ed.), ch. 3.

at the defendant's wrong rather than a value set upon the plaintiff's loss. Damages awarded on this principle are called exemplary or vindictive. The kind of wrongs to which they are applicable are those which, besides the violation of a right or the actual damage, import insult or outrage, and so are not merely injuries, but iniurioe in the strictest Roman sense of the term. An assault and false imprisonment under color of a pretended right in breach of the general law, and against the liberty of the subject; a wanton trespass on land, persisted in with violent and intemperate behavior; the seduction of a man's daughter with deliberate fraud, or otherwise under circumstances of aggravation, such are the acts which, with the open approval of the Courts, juries have been in the habit of visiting with exemplary damages. Gross defamation should perhaps be added; but there is rather that no definite principle of compensation can be laid down than that damages can be given which are distinctly not compensation. It is not found practicable to interfere with juries either way, unless their verdict shows manifest mistake or improper motive.

There are other miscellaneous examples of an estimate of damages colored, so to speak, by disapproval of the defendant's conduct (and in the opinion of the court legitimately so), though it be not a case for vindictive or exemplary damages in the proper sense. In an action for trespass to land or goods substantial damages may be recovered, though no loss or diminution in value of property may have occurred. In an action for negligently pulling down buildings to an adjacent owner's damage, evidence has been admitted that the defendant wanted to disturb the plaintiff in his occupation, and purposely caused the work to be done in a reckless manner; and it was held that the judge might properly authorize a jury to take into consideration the words and conduct of the defendant "showing a contempt of the plaintiff's rights and of his convenience."

The action for breach of promise of marriage, being an action of contract, is not within the scope of this work; but

4. Burdick on Torts, 232-234; Hale on Damages, ch. 7.

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