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AMONG the interesting questions which are daily arising in our courts of law we may certainly rank those which relate to the measure of damages awarded to the successful party in an action. These questions do not rest, nor therefore can they be argued, upon arbitrary or technical grounds, but only upon considerations of natural justice between man and man. The problem to be solved is the exact apportionment of redress for a given injury-a problem that has engaged the attention of moral philosophers, as well as of legislators and judges. Nice discrimination, and a steady hand to hold the balance, are often required for the purpose of accurately determining the amount of compensation. Varying, and dependent on the policy, climate, or condition of a people, has been the principle of assessment: sometimes the lex talionis has prevailed, "an eye for an eye, a tooth for a tooth;" at other times a were-gild, or money commutation, even for the life of a man. In a more practical point of view, it is a matter of importance for those who have suffered wrong to know with what measure compensation will be meted out to them-whether justice will open her hand liberally, or like a niggard. There are some verdicts, like the VOL. XVIII. L which, if successful, can only lead to such a result. An important judgment upon this branch of our law has lately been delivered in the Court of Exchequer*, and a principle is there laid down which is capable of extensive application, and of settling many questions which hitherto have been left in uncertainty. The facts were briefly these:-The plaintiffs were the owners of a large flour-mill at Gloucester, which was worked by a steam-engine, the shaft of which having been broken, they, on the 14th May, 1852, delivered it to the defendants (more generally known by the name of Pickford & Co.) to take to Greenwich, where it was to serve as a model for the making of a new shaft. A delay of six days beyond the time that was reasonably required for the carriage of the broken shaft took place, and in consequence a corresponding delay took place in the completion and transmission of the new shaft. It appeared that the shaft was an essential part of the machinery, and that, until the new shaft was supplied, all the hands about the mill were unemployed, and all the profits derived from the working of the mill were lost. The learned judge who presided told the jury that the plaintiffs were entitled to recover for the damage which they had sustained by reason of the stoppage of the mill for six days, and the jury gave 257. damages, in addition to 251. paid into court. This ruling was held to be wrong, and a new trial was granted. The Court, in delivering their considered judgment, said that the true principle upon which damages should be assessed for a breach of contract is, that the damages should be Hadley and Others v. Baxendale and Others, Exch Feb. 23, 1854). It will shortly appear in The Jurist, and will be published in the next part of the Exchequer Reports SPAPER other contracts; yet, for want of disclosing these facts, the shaft becomes, in the eye of the law, so many hundredweight of old iron, the delivery whereof may be delayed without any injury or loss naturally resulting from it. The adoption of such a principle cannot be said to be unreasonable. Here are two contracting parties-one possessing full knowledge, the other totally ignorant, of the special circumstances attending the contract, or, in other words, of the peculiar consequences that will accrue from a breach. If the former does not place the latter on an equal footing with himself in this respect, but induces him to undertake an extraordinary such as either result naturally from the breach, or may reasonably be supposed to have been in the contemplation of the parties at the time of entering into the contract. "If there were special circumstances, and they were communicated to the party who has broken the contract, then such special circumstances, being known, were in the contemplation of the parties, and may be taken into consideration in assessing the damages. Suppose there had been another shaft at the mill, the delay would have had no effect on the profits; or if other machinery equally essential to its being worked had been out of order, the same result would have happened. . . . It is obvious, that in the generality of cases of a miller sending a broken shaft these conse-charge at the ordinary rates of risk, he has no right to quences would not follow. Here the special circumstances were not communicated, and were entirely unknown to the defendants. We think," continued the Court, "that the judge ought to have told the jury that they ought not to take the loss of profits into consideration." In the course of the argument, Parke, B., referred, with approbation, to the rule of the French law, Code Civil, liv. 3, tit. 3, s. 1150-" Le débiteur n'est tenu que des dommages et intérêts, qui ont été prévu ou qu'on a pu prévoir lors du contrat, lorsque ce n'est point par son dol que l'obligation n'est point exécutée." The same doctrine prevails in the American law. Thus it is laid down in 2 Kent's Com. 480, note, (4th ed.)—“Damages for breaches of contract are only those which are incidental to and directly caused by the breach, and may reasonably be supposed to have entered into the contemplation of the parties, and not speculative profits, or accidental or consequential losses." It was also said by the Court that actions for not making out a good title to land contracted to be sold, and actions on bills of exchange and for non-payment of a specific sum of money, did not afford an exception to the above rule, but rather fell within the second branch of it, as each party may be said to have contemplated, upon entering into the contract, that in case the contract should be broken, the damages should be in accordance with the conventional rule, which is well established, viz. in the first case, that the damages should be limited to the expense of investigating the title, and should not include the loss of the bargain; and in the second and third, only the precise sums agreed to be paid should be recovered. The rule, as above laid down, doubtless tends to limit the liability of carriers and other contracting parties or bailees, in the absence of express notice, and shews the necessity of giving such notice, if the party who alone possesses the knowledge wishes to guard himself against loss. In numerous cases, as in the one under review, the loss of profit, the payment of wages to unemployed workmen, the liability on subsidiary contracts not performed because of the principal contract being broken, would form the only damage; and therefore, if these special circumstances be not communicated to the other party, the one who suffers the actual injury has no redress. The shaft may have been essential to the machinery, the machinery to the working of the mill, the working of the mill to the employment of the men, to the realisation of profits, and to the performance of complain if he is debarred from recovering the amount of his loss. He had the opportunity of stimulating the other party to the use of extra caution, and of making him responsible for all the injury accruing from neglect on his part. The other had a right to be forewarned, in order to be forearmed. The principle thus clearly laid down will affect and practically overrule several previous decisions, in which the loss of profits, and damages which have been paid for non-performance of subsidiary contracts, have been allowed as damages for breach of the principal contract, although no notice has been brought home to the defaulting party; (see, for instance, Walters v. Towers, 8 Exch. 401); but it will not probably touch the class of cases where the contract may be said, from its very character, to involve notice of the natural consequences for a breach of warranty of a chain cable, the plainto be apprehended from a breach. Thus, in an action tiff was held entitled to recover the value of the anchor to which the cable was attached, on proving, that a link of the cable being broken, the crew slipped the cable in order to avoid danger, and that the anchor and cable were thereby lost. (Borradaile v. Brunton, 8 Taunt. 535). So, the damages will probably still be affected by matter subsequent to the making of the contract; as if a man buy a horse with a warranty, and, relying thereon, resell him with a warranty, and being sued on the warranty by his vendee, he offers the defence to his vendor, who gives no directions as to the action, the first vendee, if he defend that action, is entitled to recover the costs thereof from his vendor as part of the damages occasioned by his breach of the warranty; (Lewis v. Peake, 7 Taunt. 153); unless he might have known, by a reasonable examination of the horse before he defended the action, that the animal was unsound at the time he resold it. (Per Cur., Wrightup v. Cham berlain, 7 Scott, 598, 602). It would seem that the special damage should henceforth be stated in the de claration, so as to bring it within the rule laid down in the principal case. It must not be overlooked, that although this rule applies generally to all cases of breach of contract, ye it is not applicable where fraud has been committed ("par son dol que l'obligation n'est point exécutée") nor where the defendant is a mere wrongdoer, as actions of tort. Reviews. The Judgment of the Court of Queen's Bench upon the THERE may be some among our readers who tire of the constantly reiterated appeal for justice, who cast aside the book that contains the oft-told tale of wrongs endured and rights denied, and who class Mr. Barber, the Baron de Bode, and the Rajah of Sattara among the individuals destined to vex the human race with their complaints. We are not among the number who thus regard these appellants to the high court of public opinion. Admitting that it is tedious to dwell for a long period upon any one subject; that it is difficult to preserve a sustained interest through more than five acts, or eight volumes of the same work; and not forgetting that even the contemplation of consistent virtue becomes wearisome, so that men were tired of hearing Aristides called "The Just;" yet, while the wrong remains, we would not hush the voice of that man who cries aloud to his fellow-men for redress; we would not refuse to listen to him, or to call the attention of others to his sorrowful narrative. Let us remember that by adopting a different course we promise impunity to those who persevere in injustice, for they will feel, that by deferring the remedy, the public will cease to care for its application. But while the injured man is supported by the sympathy of his fellow-citizens, he has cause to utter the fulness of his heart, and success often crowns his long-continued efforts. The importunate widow moved the judge, who feared not God nor regarded man, until he said, "Because this widow troubleth me I will avenge her, lest by her continual coming she weary me." These introductory remarks will justify us, we hope, in calling the attention of our readers to the small volume just issued from the press, which throws additional light upon a case which is undoubtedly one of the most remarkable in professional history. Since the delivery of the judgment in the Court of Queen's Bench, Mr. Barber, it appears, has devoted himself to obtaining information by which to elucidate the points relied upon by the Court, and his labours have not been in vain. The explanation which he is now enabled to afford, presented in the form of a sectional analysis of the judgment, can scarcely fail to satisfy impartial minds. The particulars of the concoction by Fletcher and his confederates of these remarkable frauds, as well those introduced to Messrs. Barber & Bircham's office as those previously effected through the instrumentality of other solicitors, have been traced, and it is now shewn that in numerous instances Fletcher had succeeded in imposing, not only upon his own solicitors, but also upon those retained by the Government to protect this description of property; and in one case, even though their suspicions had at first been actually aroused, Fletcher ultimately palmed off his fraud upon them, realising for himself and accomplice, who personated a "Miss Mary Hunt," upwards of 4000l. No imputation has ever been cast upon either of the professional gentlemen employed in that transaction. "Fletcher would not allow me to write the new fictitious will, fearing that Barber would discover a similarity in the writing." This revelation also throws light upon "the death at Bath," and other points dwelt upon by the Court. Fletcher's secret machinery is made known, and the extraordinary precautions adopted by him, especially in interweaving fraudulent with bona fide cases, not distinguishable by any facts within Mr. Barber's knowledge, were well calculated to disarm suspicion. Fletcher not only imposed upon the solicitors, proctors, and brokers whom he from time to time employed, but also upon those whose express duty it was to sift and scrutinise fraud in these matters, and whose minds, therefore, would constantly be in an attitude of vigilance. Upon the argument in the Queen's Bench, and throughout the discussion of the case, Mr. Barber has sustained much prejudice from the idea that it was the duty of the Bank to keep the amount of unclaimed stock and dividends a secret, and that he must therefore necessarily have known that Fletcher obtained the information on which he proceeded surreptitiously. This is, however, a misconception, for by the 56 Geo. 3, c. 60, s. 1, it is enacted, that (in addition to the other particulars) "the amount transferred shall be entered upon a list to be kept at the Bank for that purpose, which list shall be open for inspection at the usual hours of transfer at the Bank." Mr. Barber, therefore, might reasonably believe that Fletcher obtained his information legitimately, through his stockbroker, as he had represented. The explanations are fortified by clear evidence, and we cannot but concur in the hope expressed, we believe unanimously, by our contemporaries, that Mr. Barber may speedily be restored to those professional rights from the enjoyment of which his singular misfortunes have so long debarred him. A Treatise on the Law and Practice relating to Letters- Esq., M. A. Post 8vo., pp. 276. The details which the volume presents are both interesting and curious. Amongst the recently-discovered evidence is a narrative of the Slack fraud, written by Fletcher's principal accomplice, Sanders, which shews that the most elaborate contrivances were resorted to in order to guard against suspicion from Mr. Barber.not good. (Reg. v. Butler, 3 Car. & K. 215). The In reference to the forgery of the will, Sanders says, "In consequence of that letter," (a letter he had addressed to Mr. Barber in the name of J. James), application of bone hafts and lattin plates for the ' handles of knives has been held not to be a good sub'ject-matter of a patent. (Mattley's Patent, Noy, 178). 6 6 But when the application involves a new discovery of a property in the thing applied, or a new result is obtained, a patent may be good. Thus, though the adoption of caoutchouc as a fillet for cards was a very simple matter, yet, as it was a substance whose proIperties and fitness for that purpose had never been 'known before, the adaptation was held to be a good subject-matter of a patent." If Mr. Norman had assumed to criticise as well as state the authorities, he might have suggested that the dictum in Reg. v. Butler (for the specification was defective on other grounds) and the decision in Mattley's case were erroneous; and that the application of any substance to a purpose to which it has never been applied before, though the use of other substances in the same manner, for the same purpose, is known, may be protected by letters-patent, even though the result be in noways different from that already obtained by the use of other materials. The Statute of Monopolies speaks of "new manufactures," not improvements; and though, in applying the statute, the Courts have held that the new manufacture sought to be protected must be useful per se, they have not required that it should be more useful than any known manufacture of the same kind. Mr. Norman has fully stated the practice and forms under the late act, and the regulations of the Commissioners of Patents. With reference to the "provisional specification," after giving a summary of the existing regulations, he says, (p. 54): "The provisional specification will be a check on the patentee. If the complete specification is not strictly in ' accordance with it, people will be entitled to say that something is specified which would have been opposed, but which could not be opposed because the provisional specification gave no notice of what was intended to be specified. That information, if given to the Attorney-General, might have induced him to withhold the patent. We apprehend that there is a better ground for holding that a discrepancy between the provisional and final specifications is fatal, namely, that if the provisional specification describes too much, it is a fraud on the Crown; and if it does not include all that the complete specification claims, the latter is bad, as claiming more than was granted by the letterspatent. Mr. Norman proceeds:-"If an inventor desires to abandon anything contained in his provisional specification, in order to guard against the objection that he represented himself to have invented more than he has actually specified, he should enter a disclaimer 'with the specification." "If the first outline description would not be suffi'cient to embrace all the improvements in the invention, or in the mode of working it out, the proper 'course would seem to be to abandon the proceedings 'taken on the first provisional specification, and com'mence afresh with a new application, before the in'vention comprised in the first provisional specification 'is made public." The first suggestion would be very judicious if it were certain that there is any power to disclaim part of a provisional specification after its allowance by the law officers; and the second would be right if the publication of the first abandoned provisional specification did not operate, like any other publication, to defeat the protection sought under the new proceedings for so much of the invention as had been so published. We need not enlarge on this subject, as it is fully treated in the communication which follows this notice. Amendment Act, 1852, do not appear to be very generally understood in practice, if we may draw any inference from the inaccuracy with which the document is frequently drawn, the frequent discrepancy between the provisional and the final specification of a patented invention, and the confidence with which the proceedings upon a provisional specification are sometimes abandoned, for the purpose of making a fresh application for letters-patent upon an amended specification of what is substantially the same invention. The 6th section of the act requires, that with every petition for the grant of letters-patent for an invention shall be left a statement in writing, called the provisional specification, "describing the nature of the invention." Every application for letters-patent is to be referred to one of the law officers, (sect. 7), and to him also is to be referred the provisional specification; and if he is satisfied that the provisional specification describes the nature of the invention, he is to allow it, and give a certificate of his allowance, to be filed in the office of the commissioners; "and thereupon the invention therein referred to may, during the term of six months from the date of the application for letters-patent for the said invention, be used and published without prejudice to any letters-patent to be granted for the same." This is called provisional protection. In case the title of the invention, or the provisional specification, be too large, or insufficient, the law officer may allow or require the same to be amended. (Sect. 8). In lieu of leaving a provisional specification, the applicant may file with his petition and declaration a complete specification under hand and seal, “particularly describing and ascertaining the nature of the said invention, and in what manner the same is to be performed;" and the day of the delivery of such petition, declaration, and complete specification is to be recorded at the office of the commissioners, and indorsed on them, and a certificate thereof given to him; "and thereupon, subject and without prejudice to the provisions hereinafter contained, the invention shall be protected under this act for the term of six months from the date of the application;" and the validity of the letters-patent is to be made conditional on the sufficiency of such previously filed complete specification. (Sect. 9). Sect. 16 authorises the Crown, by warrant under the sign-manual, to direct any complete specification which may have been filed, and on which no letters-patent may have been granted, to be cancelled, "and thereupon the protection obtained by the filing of such complete specification shall cease.' We cite this enactment merely for the purpose of shewing more clearly than would otherwise appear the difference betwcen provisional protection and the absolute protection gained by filing a complete specification in the first instance-a course which in many cases will be found to be the most prudent and the least expensive. Sects. 15 and 18 authorise the preparing and sealing of letters-patent for " the said invention." Sect. 20 provides that (subject to certain exceptions) no letters-patent shall issue, "or be of any force or effect," unless the same be granted during the continuance of the provisional protection, or the protection by reason of the deposit of a complete specification. The letters-patent may be dated as of the day of the application for the same, (sect. 23); but if a complete specification of the invention was not deposited on the application, no proceeding at law or in equity shall be ON THE PROVISIONAL SPECIFICATION OF ment committed before the same were actually granted. had on the letters-patent in respect of any infringe INVENTIONS. THE nature, office, and effect of the provisional specification of an invention under the Patent-law (Sect. 24). Sect. 39 enacts, that all the provisions of the acts of the 5 & 6 Will. 4, c. 83, and 7 & 8 Vict. c. 69, relating to disclaimer, and memoranda of alterations in letters |