30. An agreement on the record in the court below, stating the damages to be allowed on certain alternatives, will not be regarded by the supreme court on a writ of error; but the court will award a venire facias de novo, to ascertain them. Lanusse v. Barker, 3 Wheat. 101; 4 Cond. Rep. 204.

31. In debt, a less sum may be recovered than that demanded in the writ, where an entire sum is demanded, and it is shown by the counts to consist of several distinct debts, or where the precise sum demanded is diminished by extrinsic circumstances. Hughes v. Union Ins. Co., 8 Wheat. 294; 5 Cond. Rep. 443.

32. Query, Where a man covenants to convey lands, and breaks his covenant to convey, in order to avail himself of their increased value, and an action of covenant is brought to recover damages for the breach, if the value of the lands at the time of trial should not be the standard of damages? Letcher and Arnold v. Woodson, 1 Brockenb. C. C. R. 212.

33. But it seems that where a man contracts for the sale of lands, without fraud, and it after wards appeared that he had, in truth, no title to the lands when the contract was entered into, and in consequence of his want of title, he refuses to convey; the standard of damages, in an action founded upon the covenant, is the value of the lands at the time of the contract entered into, and not their value at the time of trial. Ibid.

34. Whether the jury, in such a case, should allow interest upon the value of the lands at the date of the contract, must depend upon the circumstances of the case, of which they are the proper judges; and it is competent for the defendant to give in evidence to the jury any circumstances tending to show that interest should not be allowed. Ibid.

furnishing the amount, but the rate of loss, and to apply this rate to the prices of the articles of the first quality at Canton: and in the absence of other evidence, the prices agreed on in the contract may be taken. Gilpins v. Consequa, 3 Wash. C. C. R. 184.

38. Where, in a contract, the following clause was contained,-"the said houses to be completely finished on or before the 24th of December next, under a penalty of one thousand dollars in case of failure," it was held, that this was not intended as liquidated damages, but, on a fair construction of the whole contract, applied to all the covenants made by the same party in that agreement; that it was a penalty, and could not be set off in an action to recover the price of the work. An agreement to perform certain work by a stipulated time, under a certain penalty, is not to be construed as liquidating the damages which the party is to pay for a breach of his covenant. Tayloe v. Sandiford, 7 Wheat. 13; 5 Cond. Rep. 210.

39. When a voyage was undertaken to Havana, and thence to Leghorn and back, and the owners ordered their consignees at Leghorn to apply their funds, estimated at four thousand six hudred pezzos, to the amount of two thousand two hundred pezzos value, in tiles, and the residue to invest in paper, and the consignees, accepting the orders, invested the whole proceeds in paper, because they fell short of the estimated sum, although the sum of one thousand seven hundred and fifty pezzos might have been so invested: it was held that the consignees were liable to damages for breach of orders. Cunningham v. Ball, 5 Mason's C. C. R. 161.

40. The damages in such case are not to be confined to the transactions at Leghorn, but to be calculated on the actual injury to the plaintiff on the events of the voyage, taking the mar ket at Havana and all other circumstances into consideration. Ibid.

41. The receipt of the proceeds of the paper, after the sale by the master at Havana, is not, in point of law, a ratification, per se, of the purchase, and investment in paper. Ibid.

42. A jury, in the exercise of their discretion, may give interest on the value of property converted as a part of the damages. Matthews v.

36. A sale of the vessel and her tackle in Maryland, at auction, by the master, who by misconduct has got the vessel on shore, gives no title to the purchaser; and in an action for trover and conversion for the articles purchased, the measure of damages is the real value of the property, and not what they were sold for. Scull v. Briddle, 2 Wash. C. C. R. 150.

37. To ascertain the amount of the indemnity to which the plaintiffs are entitled, for the breach of a contract to deliver teas of a specified quality, the rule is to consider the sales of the teas at the market where they were disposed of, and com

sufficient to show a violation of a right. The law will presume some damage in such a case. A fortiori, where the act done is such, that, by its repetition or continuance, it may become the foundation or evidence of an adverse right. Webb v. Portland Manuf. Co., 3 Sumner's C. C. R. 189.

44. Wherever a wrong is done to a right, the law imports damage; and if no substantial injury be proved to be thereby occasioned, nominal damages will be given in support of the right. Whipple v. Cumberland Manuf. Co., 2 Story's C. C. R. 66.

45. In such cases, if the plaintiff establish his right of action, the jury may, if they choose,

give him such damages as will fully indemnify him, beyond what the taxed costs would reach, and may take into consideration counsel fees, and other necessary expenses, fairly incurred by him in the case. Ibid.

2. Damages in Civil Cases.

46. In estimating damages for the breach of a contract to deliver flour, the jury are to ascertain the value of the flour on the day when the cause of action arose. Douglass & Mandeville v. M'Allister, 3 Cranch, 298; 1 Cond. Rep. 537.

et al. v. Consequa, Peters' C. C. R. 172. Youqua v. Nixon et al., Peters' C. C. R. 221.

52. No damages are allowed for any profit or gain the plaintiff might have obtained by exchange, or otherwise. Ibid.

53. Interest on unliquidated damages is not allowed. Ibid.

54. Damages will be allowed for the delivery of teas by a Hong merchant at Canton, inferio to those he contracted to sell. Willings et al. v. Consequa, Peters' C. C. R. 172.

56. Damages for breach of contract, do not bear interest. Ibid.

48. B in Philadelphia, agreed to pay A's agent one hundred and seventy thousand guilders, in Amsterdam, on the 1st of March; and if he should fail so to do, then to repay to A the value of said guilders, at the rate of exchange current in Philadelphia, at the time demand of payment is made, together with damages at twenty per cent., in the same manner as if bills of exchange had been drawn for the said sum, and they had been returned protested for nonpayment; and lawful interest for any delay of payment which may take place. After the demand, B paid the one hundred and seventy thousand guilders in Amsterdam, to the agent of A, on the 13th of May, instead of the 1st of March: A is not entitled to the twenty per cent. damages; but may, in a suit upon the bond given to perform the contract, recover interest on the one hundred and seventy thousand guilders, from the 1st of March to the 13th of May. United States v. Gurney et al., 4 Cranch, 333; 2 Cond. Rep. 132.

49. If the reservation of damages in the condition of the bond, is in law only a double penalty, then interest is the legal compensation for the breach of covenant contained in the bond.

Ibid.

50. The rate of damages to be recovered for a breach of contract, is a part of the right to which the injured party is entitled, and is distinct from the remedy for enforcing his claim. In the former case, the lex loci of the place where the contract is made or broken, prevails; in the latter, the lex loci of the forum where the remedy is provided, operates. Consequa v. Willings, Peters' C. C. R. 225.

51. The sales at Amsterdam, of teas shipped at Canton, under a contract that they should be prime teas, compared with the sales of similar teas there, furnish the rate of loss, which, in ascertaining the damages sustained by the breach of a contract, is to be applied to the first cost of the teas so shipped at Canton; but those sales do not furnish the amount of the damages. Gilpins v. Consequa, Peters' C. C. R. 86. Willings

57. It is the duty of the jury who find in favour of a plaintiff in an action for a violation of a patent granted by the law of the United States, for a new and useful discovery or inven tion, to find the actual damages sustained, and the court will treble them. Gray et al. v. James, Peters' C. C. R. 394.

58. In a case where it would be difficult to ascertain the injury resulting from the breach of contract, or the sum in damages by which the injury might be compensated, the supreme court will not themselves ascertain the injury, nor the damages; nor direct an issue quantum damnificatus. Pratt et al. v. Law et al., 9 Cranch, 456; 3 Cond. Rep. 460.

59. In an action at law by the vendee, against the vendor, for a breach of the contract in not delivering the thing sold, the proper measure for damages is not the price stipulated in the contract, but the value at the time of the breach. Hopkins v. Lee, 6 Wheat. 109; 5 Cond. Rep. 23.

60. This rule applies to the sale of real, as well as personal property; but, query, whether it is the proper measure of damages in the case of an action for eviction? Ibid.

61. The faithful execution of orders which an agent or correspondent has contracted to execute, is of vital importance in commercial transactions; and may often affect the injured party, far beyond the actual sum misapplied. A failure in this respect may entirely break up a voyage and defeat the whole enterprise. Speculative damages dependent on possible, successive schemes, ought not to be given in such cases; but positive and direct loss, resulting plainly and immediately from the breach of orders, may be taken into the estimate. Bell et al. v. Cunningham et al., 3 Peters, 69.

62. The jury, in an action for damages for breach of orders, may compensate the plaintiff for actual loss, and not give vindictive damages. The profits which would have been obtained on the sale of the article directed to be purchased, may be properly allowed as damages. Ibid. 86.

63. Where the master of a ship loaded on freight, and having no consignment of the cargo, breaks up the voyage at an intermediate port, short of the port of destination, and the goods are landed, upon the ground of necessity, for the purpose of being re-exported (the importa

64. N. stipulated in certain articles of agreement to transport and deliver by the steamboat Paragon to R. a certain quantity of subsistence stores, supposed to amount to three thousand seven hundred barrels, for the United States; in consideration whereof R. agreed to pay to N., | on the delivery of the stores at St. Louis, at a certain rate per barrel, one-half in specie funds, or their equivalent, and the other half to be paid in Cincinnati, in the paper of banks current there at the period of the delivery of the stores at St. Louis. Under the agreement was the following memorandum: "It is understood that the payment to be made in Cincinnati, is to be in the paper of the Miami Exporting Company, or its equivalent." The circuit court erred in refusing to instruct the jury that the plaintiffs could only recover the stipulated price for the freight actually transported, and that they were entitled to no more than the specie value of the notes of the Miami Exporting Company Bank, at the time the payment should have been made at Cincinnati. The specie value of the notes, at the time they should have been paid, is the rule by which such damages are to be estimated. Robinson v. Noble's Adm'rs, 8 Peters, 181.

65. The plaintiff, the owner of the steamboat, was not entitled under the contract to recover in damages more than the stipulated price for the freight actually transported. If R. had bound himself to deliver a certain number of barrels, and had failed to do so, N. would have been entitled to damages for such failure; but a fair construction of the contract imposed no such obligation on R. lbid.

66. There is no pretence that R. did not deliver the whole amount of freight in his possession, at the places designated in the contract. In this respect, as well as in every other, in regard to the contract, he seems to have acted in good faith. And he was unable to deliver the number of barrels supposed, either through the loss stated, or an erroneous estimate of the quantity. But, to exonerate R. from damages on this ground, it is enough to know that he did not bind himself to deliver any specific amount of freight. The probable amount is stated or supposed in the agreement; but there is no undertaking as to the quantity. Ibid.

67. In an action for damages for negligence in keeping plaintiff's sheep, founded on the breach of a special contract; the defendant will not be permitted to deduct from the damages the compensation which he claims for keeping the sheep. Such compensation, if any be due, must be sought in a distinct action. Crowninshield v. Robinson, 1 Mason, 93.

68. In assumpsit against a consignee or bailiff of goods, "to sell the same and render a reason

69. It would be a most dangerous principle to establish, that the acts of a ministerial officer, when done in good faith, however injurions to private rights and unsupported by law, should afford no ground for legal redress. When a ministerial officer acts in good faith, he is not liable to exemplary damages for an injury done; but he can claim no further exemption when his acts are against law. Tracy et al. v. Swartwout, 10 Peters, 95.

70. In an action for goods sold, the defendant may give in evidence, in mitigation of the damages, that the goods were of a quality inferior to what they were represented to be at the sale. Miller v. Smith, 1 Mason, 437.

71. When goods are destroyed, or materially injured, on board a vessel in a port where they are shipped, the damages must be ascertained by the difference between the prime cost and charges, and the sales at the port of shipment; and not by the probable profits, if the goods have gone safe to the port of destination. Dusar v. Murgatroyd, 1 Wash. C. C. R. 13.

72. Action by the owner of a vessel against the defendant, for having put on board of her, without the knowledge of the owner, and against the regulations of Havana, a quantity of silver, which occasioned the seizure and detention of the vessel. Held, that the defendant is liable to answer for the damages sustained by the plaintiff, if they were occasioned by such illegal act. Sparks v. West, 1 Wash. C. C. R. 238.

73. Where A brought an action against B for flowing back the water of the river Presumpscot, to the injury of his rights as riparian proprietor, and to the obstruction of his mills; it was held, that if the plaintiff could prove that the natural flow of the stream was changed by any person not having a legal right to change it, he could recover nominal damages, although no actual injury had been thereby occasioned to him. Whipple v. Cumberland Manufacturing Co., 2 Story's C. C. R. 161.

3. Damages in Maritime Cases.

74. Upon an illegal seizure, the original wrongdoers may be made responsible beyond the loss actually sustained, in a case of gross and wanton outrage; but the owners of the privateer, who are only constructively liable, are not bound to the extent of vindictive damages. The Amiable Nancy, 3 Wheat. 546; 4 Cond. Rep. 322.

75. Damages are not recoverable in such case for the deterioration of the cargo, not occasioned by the improper conduct of the captors. Ibid.

76. The possible or probable profits of an unfinished voyage afford no rule by which to estimate the damages in a case of maritime trespass. La Amistad des Rues, 5 Wheat. 385.

77. The prime cost or value of the property lost, and, in cases of injury, the diminution in value by reason of the injury, with interest thereon, affords the true rule for estimating damages in such a case. Ibid.

78. In cases of illegal capture, where the ves

sel and cargo have been entirely lost to the owner, the proper measure of damages is the prime value and interest to the day of the judgment; and in cases of gross illegality, damages have been restricted to demurrage and interest on the principal of the captured property. The Lively, 1 Gallis. 315.

91. The captors are not liable to damages where there is probable cause of capture. The Liverpool Packet, 1 Gallis. 513.

81. But it is not to be allowed where the vessel has been restored with the cargo on board, and in a situation capable of performing the Voyage. Ibid.

82. Supposed profits are not to form an item for damages in case of restitution. Ibid.

83. If captors wantonly injure the captured crew, the prize court will award damages for the personal ill-usage. Ibid.

84. Where a capture has been made after the expiration of the time within which, by the treaty of peace, captures could lawfully be made, the owners are entitled to compensation for the loss of the goods which have been consumed or destroyed by the captors: but where the captors have acted with good faith, the damages are not to exceed the amount of loss; and the onus probandi is on the claimants. The Ulpiano, 1 Mason, 91.

85. If a person has in the acts of court asserted himself as part owner of a privateer, he will be responsible as such owner for damages assessed against such privateer, although his name be not in the ship's papers. The Mary, 1 Mason, 365.

86. The commander of a United States' ship of war, if he seizes a vessel on the high seas without probable cause, is liable to make restitution in value, with damages and costs, even although the vessel is taken out of his possession by a a superior force; and the owner is not bound to look to the recaptor, but may abandon, and hold the original captor liable for the whole loss. Maley v. Shattuck, 3 Cranch, 458; 1 Cond. Rep.

597.

87. Where a capture is in itself justifiable, the subsequent detention and sending in for adjudication will not be punished by damages. The Marianna Flora, 11 Wheat. 1; 6 Cond. Rep.

201.

88. Captors have a right to carry their prizes to a proper and convenient port for adjudication, and are not controllable by the revenue officers. If they proceed irregularly, it is at the peril of damages. The Lively, 1 Gallis. 315.

89. In estimating damages against a captor, a vindictive compensation is not to be allowed, unless where the misconduct has been very gross and without apology. Ibid.

90. But damages ought to be equal to the real injury sustained. Ibid.

ders; or of actual presence and co-operation. The Eleanor, 2 Wheat. 345; 4 Cond. Rep. 149.

94. If a belligerent party captures and detains neutral property, he does it at his peril. Should the capture and detention, on investigation, turn out to be unwarranted by the general law of nations, or forbid by particular treaty, he is bound to make ample compensation. Hollingsworth et al. v. The Betsey, 2 Adm. Decis. 330.

95. The owners of a privateer are responsible for the conduct of their agents, the officers and crew, to all the world; and the measure of such responsibility is the full value of the property injured or destroyed. Del Col, Plaintiff in Error, v. Arnold, Defendant in Error, 3 Dall. 333; 1 Cond. Rep. 150.

96. Where the report of persons appointed to ascertain and assess damages for a marine trespass, give a gross sum, unaccompanied by explanations, to be paid by the captors who had made an illegal capture, the report was set aside. The omission of the appellant to except to the report, does not cure an error apparent on the face of the record, and the omission to give the explanations is such an error. Murray v. The Charming Betsey, 2 Cranch, 64; 1 Cond. Rep. 358.

97. A public officer, entrusted to perform a duty on the high seas necessary to the service of his country, and acting according to the best of his judgment under the orders he has received, if he is the victim of any mistake, ought never to be assessed with vindictive damages. It is not only the duty of the court to relieve him from such damages, but no sentence should be affirmed, where from the nature of the proceedings the whole case appears on the record, unless those proceedings are such as to show on what the decree has been founded, and to support that decree. Ibid.

98. A charge for expenses of soliciting from the United States compensation for an illegal capture, is not a proper charge against the captors; nor is the charge of a premium of insurance, no premium having been paid, admissible. Maley v. Shattuck, 3 Cranch, 458; 1 Cond. Rep.

597.

99. The outfits of the captured vessel, and the sum advanced to the crew, are proper items in the estimate of damages. Ibid.

100. The settled practice of the supreme court is, that whenever damages are claimed by the libellant or the claimant in the original proceed