the unlawful act necessarily relieves the tenant from paying rent. Again, a man robs me of my horse: the direct damage is the horse lost to me: the consequential damage is the being prevented from making profit by him; which is not certain, because the opportunity of making profit might have failed me, and possibly might have been neglected though it had offered. In the case first mentioned, the loss of the rent, being certain, comes properly under the estimation of actual damage; and consequently will not be excluded by a court of common law. But consequential damage that is uncertain, is not always taken into the account. And the reason follows. It is regularly incumbent on the man who claims reparation, to prove the extent of the damage he has sustained, which cannot be done with respect to consequential damage, as far as uncertain. But as it is undoubtedly a prejudice to be deprived of profit that probably might have been made, the claimant is in equity relieved from this proof, where the direct damage is the effect of a criminal act : every presumption is turned against the delinquent; and he is charged with every probable article of profit, unless he can give convincing evidence that the profit claimed could not have been made. And this is conformable to the rules of equity; for as the profits are rendered uncertain by a criminal act, the consequences of this uncertainty ought to affect the delinquent, not his party, who is innocent. Here is a fair opportunity for the interposition of equity. A court of common law cannot listen to any proof but what is complete; and cannot award damages except as far as rendered certain by evidence. A court of equity, with respect to criminal acts, turns the uncertainty against the

delinquent; and by that means affords complete reparation to the person injured. Thus, in a spuilzie, which is a claim for damages in a civil court founded on the violent abstraction of moveable goods, the profit that might have been made by the horses carried off termed violent profits, makes always an article in the estimation of damage. The rule is different, where the damage is occasioned by a culpable act only; for as there is nothing here to vary the rule of law, Quod affirmanti incumbit probatio, no article of profit will be sustained but what can be rendered certain by evidence. This, it is true, may possibly be prejudicial to the person who is hurt by the culpable act; but humanum est errare; and it is more expedient that he suffer some prejudice than that men should be terrified from industry and activity, by a rigorous and vague claim. (a) This doctrine is espoused by Ulpian: " Item Labeo scribit, si cum "vi ventorum navis impulsa esset in funes anchora"rum alterius, et nautæ funes præcidissent, si nullo "alio modo, nisi præcisis funibus explicare se potuit, "nullam actionem dandam. Idemque Labeo, et Pro"culus, et circa retia piscatorum, in quæ navis inci"derat, æstimârunt. Plane, si culpa nautarum id "factum esset, lege Aquilia agendum. Sed ubi damni

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injuria agitur, ob retia, non piscium, qui capti non "sunt, fieri æstimationem; cum incertum fuerit, an caperentur. Idemque et in venatoribus, et in au

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(a) In the English courts of common law there is no accurate distinction made between damage certain and uncertain. Damages are taxed by the jury, who give such damages as in conscience they think sufficient to make up the loss, without having any precise rule.

L. 29. § 3. ad leg. Aquil.

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cupibus probandum." The following instance is an apt illustration of this doctrine. The Duke of Argyle's right of admiralty reaches over the western islands: on the coast of which a wrecked ship, floating without a living creature in it, was laid hold of and sold by authority of the Duke's depute to one Robertson, who refitted the ship at a considerable charge, and provided a crew to carry her to Clyde. Sir Ludovick Grant, who had a deputation from the Admiral of Scotland, misapprehending the bounds of his jurisdiction, gave orders for seizing the ship as his property; and these orders were put in execution after the ship was refitted by Robertson. As soon as the mistake was discovered, the ship was redelivered. But Robertson, who lost considerably by the delay, brought a process against Sir Ludovick for damages, and obtained a decree* for a large sum, to which the direct damage amounted. It was considered, that the defendant's error was culpable in acting rashly without duly examining the limits of his jurisdiction, which might have been ascertained by inspecting the Duke's title on record. But as to the consequential damage, namely, the profits Robertson could have made by the ship had he not been unjustly deprived of the possession, which must be uncertain, the court unanimously rejected that branch of the claim.

The next question is, Whether in estimating damage there be ground in any case for admitting the pretium affectionis. Paulus answers, That there is not: "Si servum meum occidisti, non affectiones "æstimandas esse puto, (veluti si filium tuum natura

*December 21, 1756.

E

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"lem quis occiderit, quem tu magno emptum velles), ❝sed quanti omnibus valeret. Sextus quoque Pedius "ait pretia rerum, non ex affectione, nec utilitate singulorum, sed communiter fungi. Itaque eum, qui "filium naturalem possidet, non eo locupletiorem esse, quod eum plurimo, si alius possideret, re"dempturus fuit: nec illum, qui filium alienum pos"sideat, tantum habere, quanti eum patri vendere "posset: in lege enim Aquilia (damnum) consequi

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mur, et amisisse dicemur, quod aut consequi po"tuimus, aut erogare cogimur."* As this response is given in general terms, without distinction of cases, it must be considered as declaratory of the common law. The same rule must obtain in equity where the wrong is culpable only. But in repairing mischief done intentionally, the pretium affectionis ought in equity to be admitted; because otherwise the person who suffers obtains no adequate reparation; and also because that otherwise there is no proper distinction made between a crime and a fault.

CHAPTER II

Powers of a Court of Equity to remedy what is imperfect in common law, with respect to protecting the weak of mind from harming themselves by unequal bargains and irrational deeds.

THE weakness and imbecility of some men make them a fit prey for the crafty and designing. But as every deed, covenant, or transaction, procured by un

* L. 33, ad legem Aquiliam.

due influence, comes under the foregoing chapter, the present chapter is confined to cases where equity protects individuals, who are not misled by undue influence, from hurting themselves by their own weakness and imbecility. And here, though for the sake of commerce, utility will not listen to a complaint of inequality among majores, scientes, et prudentes; yet the weak of mind ought to be excepted; because such persons ought to be removed from commerce, and their transactions be confined to what is strictly necessary for their subsistence and well-being. And this is justly confining to the weak of mind a rule against inequality in bargains, which the Romans, ignorant of commerce, made general in respect to every

person.

I begin with deeds granted by persons under age, who cannot be supposed mature in judgment. A reduction upon the head of minority and lesion, unknown in the common law, is an action sustained by a court of equity for setting aside any unequal transaction done during nonage. But inequality ought not to be regarded in a deed that proceeds from a virtuous and rational motive, which would be a laudable deed in one of full age. I give the following examples. A young man under age, having no means of his own, is alimented and educated by a near relation, till he happens to succeed to an opulent fortune. Full of gratitude, he grants to his benefactor a remuneratory bond for a moderate sum, and dies without arriving to full age. A court of equity will never give countenance to the heir attempting to reduce this bond; for gratitude is a moral duty, and the young man was in conscience bound to make a grateful return. A court of equity, it is true, has not many op