child, he retracted his promise, and directed his wife to have the children educated as Protestants. The wife, unknown to the father, took the children to confession and Roman Catholic services, and imbued their minds with such distinctive Roman doctrines that the three children, aged 12, 11, and 9, respectively, refused to accompany their father to Protestant churches. Upon the father proceeding to send the children from home to be educated by a Protestant clergyman, the mother, who was at this time separated from her husband, petitioned to have the custody of the infants, under the "Infants' Custody Act, 1873." The Court dismissed the petition. (g)

(g) Agar-Ellis v. Lascelles, 27 W. R. 117.

BOOK IV.

DAMAGES.

§ DAMAGES. A compensation and a satisfaction for a loss or injury sustained.

§ THE MOTIVE of the person causing the loss or injury cannot be taken into account by the jury.

§ EXCEPT in the cases of malicious injuries, and trespasses, accompanied by insulting, cruel, or wanton conduct, and then

§ EXEMPLARY DAMAGES may be given, which are in the nature of a punishment, intended to have a deterrent effect.

Illustration. Merest was out shooting on

his own manor, when Harvey, a banker, a magistrate, and a M.P. drove up in his carriage, and vowed he would join Merest's party. Merest gave him distinct notice not to do so; but Harvey fired several times on Merest's land at Merest's birds, and proposed to borrow shot of Merest, when his own was expended. He used very intemperate language, and threatened to commit Merest, and defied him to bring an action. Merest sued him, and recovered £500, and the Court held the verdict to be a proper one, and the damages not excessive. (a)

I. NOMINAL DAMAGE is an insignificant amount recovered, when the law presumes damage, although the jury find that the plaintiff has suffered no appreciable loss;

1. Where there has been a bare breach of contract; 2. Where there has been a bare infringement of a right. II. ACTUAL DAMAGE is where the jury can estimate the amount of loss which the plaintiff has suffered, and may be

1. General damage, viz., that which is the primary and immediate result of the defendant's misconduct, and

this is,

(i) In contracts, that which may reasonably be considered as arising in the ordinary course of things from the breach of contract. (a)

For example

(a.) If the plaintiff has lent the defendant

money at interest, the damages will be the sum lent and the amount of interest unpaid.

5) If the defendant has agreed to sell goods to the plaintiff, and refuses to deliver them, the damages will be the difference between the contract price of the goods and the market price of goods of a similar description and quality at the time when the defendant should have given delivery. (b)

(y) If the plaintiff is suing for the non-repair of a house under a covenant, the damages will be such a sum as will put the house into such repair as is demanded by the covenant, regard being had to the length of the lease. (c)

(a) Hadley v. Baxendale, 9 Ex. 341.

(b) Gainsford v. Carrol, 2 B. & C. 624.

(c) Doe d. Worcester School Trustees v. Rowland, 9 C. & P. 734.

(8.) If the defendant is a carrier, and loses

the plaintiff's goods, the damages will be the value of the goods at the place and time where, and at which, they ought to have been delivered. (d) (.) If the defendant is sued on a guarantie,

the plaintiff will recover the amount due to him from the person he has trusted on the guarantie, with interest, if the debt bears interest. (e)

(3.) If the plaintiff is suing for the breach of a warranty of a horse, he will recover such a sum as represents the difference between the actual value of the horse with the defect, and the value of which it would have been, had it had no defect. (f)

(ii) In torts the direct loss, which in the ordinary course of things flows immediately from the original wrongful act. (g)

For example

(a.) If the tenant has committed waste by removing fixtures, the reversioner will recover the sum at which the fixtures would be valued between an outgoing and an incoming tenant. (h)

(3.) In an action of trover for goods, the plaintiff would recover the value of the goods.

(7.) If the defendant has negligently driven

(d) Rice v. Baxendale, 7 H. & N. 96.

(e) Ackerman v. Ehrensperger, 16 M. & W. 99.

(f) Towers v. Barrett, 1 T. R. 136.

(g) Sharp v. Powell, L. R. 7 C. P. 253.

(h) Thompson v. Pettitt, 10 Q. B. 105.