further in quest of consequence, to punish a wrongdoer than to redress an act of pardonable negligence."

"I do not think," says an eminent English judge, in a recent case, "that the jury is bound to weigh in golden scales. how much injury a party has sustained by a trespass."

But the actual and necessary expenditures of the company in the establishment of their business have nothing to do with consequential damages. They are in the nature of direct and certain damages. They are expenditures which have been made fruitless by the wrong of Paraguay. There is nothing conjectural about them. The data for their computation are clear and distinct, and the proof of their payment is beyond a doubt. The "United States and Paraguay Navigation Company" had actually paid out and expended in the prosecution of their enterprise, prior to its destruction by Paraguay, and have since expended, in legitimately winding up its business, and prosecuting its claim for indemnity, the sum of $402,597.37. Embraced in this amount are its losses on two vessels, neither of which had reached its place of destination. One of them was condemned and sold at Maranham, and the other, only reaching Buenos Ayres after the company was broken up, was driven to a deviation from her voyage, and was wrecked in Tigre river. There is no question, however, that both the ships were selected with care and judgment, and that the disasters which befel them are beyond the reach of ordinary prudence on the part of the company to avoid.

The history of the "El Paraguay " is stated in detail, and with great frankness, by Captain Potter. She was a staunch, strong vessel, thoroughly repaired, and fitted out at great expense, and was only rendered unseaworthy by a succession of storms which it seldom falls to the lot of any vessel to encounter during one voyage. She forms a just part, then, of the expenses of the expedition. Her loss was one of the incidents of the business; and every enterprise must encounter risks and suffer losses as well as make profits, and the profits are relied upon to make compensation for the losses. The company understood all this perfectly, and it only took the hazard from its confidence in the final results of its enterprise, and its expectation of deriving from it, at last, the most satisfactory returns. This expectation bid fair to be fully realized, when President Lopez, by driving out the company, made Paraguay liable for all the legitimate losses of the company. Had the company been left to itself, the

losses would have speedily been swallowed up in the gains.

The same may be said of the selection and outfit of the "Blodgett," that has been said of the selection and outfit of the "El Paraguay." But the Blodgett arrived safely at Buenos Ayres, and but for the deviation from her voyage, which the acts of Paraguay occasioned, she would doubtless have arrived safely at Asuncion. Her loss was occasioned by this deviation, and the law is well settled that, in such a case, the loss must fall upon the party by whom the deviation is rendered necessary.

To where the defendant undertook to carry a quantity of lime in his barge, from Medway to London, and in going to London deviated from the usual course, and during the deviation a tempest wet the lime, whereby it set fire to the barge, and the whole was destroyed, it was held that the cause of the plaintiff's loss, wiz: the deviation, was sufficiently proximate to entitle the plaintiff to recover. (Davis vs. Garrett, T Bingham Rep. 716.) See also, 22 Penn. 54, Pittsburgh vs. Grier. Opinion of Black, C. J.

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But the loss in both these instances, the Paraguay and the Blodgett, having occurred through no negligence of the company, may well be charged, independent even of the rule of loss, as a part of the general cost of the company's position in Paraguay.

As other items, also, in this same account of expenditures, are embraced charges for counsel fees and expenses of prosecution. Under the civil law these were always allowed; and Story J., in Pierson vs. Eagle Screw Company, 6 Story, 402, seems to have settled the principle in common law. "If the plaintiff," he says, "has established the validity of his patent, and that the defendants have violated it, he is entitled to such reasonable damages as shall vindicate his right, and reimburse him for all such necessary expenditures as have been necessarily incurred by him, beyond what the taxable costs will repay, in order to re-establish that right."

Judge Woodbury afterward concurred in this opinion. (Allen vs. Blunt, 2 Woodbury and M. 121.)

The same rule was adopted by the American commissioners in Leggett's case, and was sustained by Baron Roenne, the arbitrator. The inquest allowed in that case for time and expenses in prosecuting the claim.

In Leggett's case, also, interest was allowed at the legal aate in Mexico. We have charged interest in in our exhibit

according to the rates and practice in Rhode Island, and only what would make us whole, if it should be allowed.

But the position in Paraguay, which had been achieved after great expenditure and so many disasters, was worth far more to the company than it cost. Without claiming consequential damages in any form whatever, we respectfully maintain that, in estimating the value of the company's position in Paraguay, and the indemnity, consequently, which President Lopez should pay them for having taken it away from them, reasonable reference must be had to the profits which were likely to be derived from it. In many cases this ability to make money-or, in other words, expected profitsconstitutes the whole value of a property. Take a newspaper, for example, where everything is dependent upon the good will." We have known $30,000 to be given for a newspaper establishment, which did not even own the press and type upon which it was printed; yet the establishment was worth the price paid for it, because it yielded a large interest on that sum.

The rule of considering profits as an element of value is sustained by the most respectable authorities. In Ingram vs. Lawson, 6 Bingham, N. Č., 212, the plaintiff was allowed to prove the average profits to the captain on an East India voyage, and the jury were instructed that, with a view to estimate the damage, they might look to the nature of his business and his general rate of profit; and, on a motion for a new trial, this was held right. "With respect to the damages," Coltman, J., said, "the jury must have some mode of estimating them, and they would not be in a condition to do so unless they knew something of the plaintiff's business and the general return from his voyages."

So, in Alabama, (Donnell vs. Jones, 17 Ala., 689,) the court say: "We would by no means say that the jury should make the supposed profits which the plaintiff had lost the measure of damages. All we design to affirm is, that proof tending to establish such loss, as a consequence of the suit, (malicious prosecution,) may properly go before the jury, to serve as. some guide for them in the exercise of their discretion in estimating the loss."

And Mr. Sedgwick says (page 93) that in cases of tort, this evidence appears to be often necessary. In McNiel vs. Reed, also, (9 Bingham, 68,) which was an action for breach of an agreement to go into partnership, the plaintiff was allowed to show the value of an East India voyage which he had

given up, "not as special damage, but as an ingredient for estimating the value which each of the parties set on the contract in dispute."

In a commission of this kind, under a treaty which requires only impartiality and justice at the hands of the commissioners, no reasonable ingredient of damage will be refused consideration. Mere technicalities will be always sacrificed to substantial justice; and where the courts admit the estimate of profits at common law, to assist the judgment of a jury, a liberal application of the same rule will doubtless be made by an international commission, which has a large discretion and sits to do equity.

In Leggett's case, the American commissioners, watchful of the most extreme rights of their own citizens, decreed the allowance to the claimant of "expected profits" as direct damages, and the argument of Governor Marcy in justification of this rule, as against a wrongdoer, is extremely able, and supported by the most respectable authorities. But the consideration of probable profits as an element of present value, is allowed in cases of tort by the best of the modern decisions, and by the leading text-book also, (Mr. Sedgwick's,) on the subject of damages. It is a legitimate element, therefore, in cases of this description, and is peculiarly appropriate in this case.

When the company embarked in their enterprise, it was of course with a view to expected profits that they did so, and it was with a view also to extraordinary profits. They understood very well the risks they encountered. They knew how much capital they would have to invest. They knew that some of their ships might be disabled, and some of their agents might fall victims to the climate. They knew that the contemplated seat of their operations was far off, and in a region where governments were not always stable, and revolutions not impossible. They understood all these risks, and they took them in consideration of what they believed they would ultimately accomplish. They were intelligent men. They had made themselves acquainted with the productions and resources of the valley of the La Plata, and with the position, in reference to them, of Paraguay. The government of Paraguay had held out inducements to them to go there, and they relied upon those inducements. They relied also upon having "fair play" there, and that legitimate protection which a law-abiding resident has everywhere a right to expect. They relied, more

over, and more than all, upon the name and character of American citizens, and upon the disposition and ability of the government to protect its people, wherever they are, in the exercise and maintenance of their just rights. Under what circumstances this protection might become necessary, it was impossible to foresee. They had reason to anticipate the good will of President Lopez; but if he should become hostile and aggressive, they believed that he could not be allowed to justify his aggressions by aleging the arbitrary character of his government, and his consequent right to do as he pleased with foreigners, as well as with subjects. If he invited property there, he could not confiscate property. If he admitted citizens from abroad to trade there, under assurances of safety, he could not, by ex post facto decrees, break down their trade, and then drive them from the country. What might be the rule, under governments of fixed law, is not always the rule under governments of force. "The United States believe it to be their duty," says Gen. Cass to the American minister in Nicaragua, under date of July 25, 1858, "and they mean to execute it, to watch over the persons and property of their citizens visiting foreign countries, and to intervene for their protection when such action is justified by existing circumstances, as well as by the law of nations. Wherever their citizens may go through the habitable globe, when they encounter injustice they may appeal to the government of their country, and the appeal will be examined into with a view to such action in their behalf as it may be proper to take. It is impossible to define in advance and with precision these cases in which the national power may be exerted for their relief, or to what extent relief shall be afforded. Circumstances as they arise must prescribe the rule of action. In countries where well defined and established laws are in operation, and where the operation is committed to able and independent judges, cases will rarely occur where much intervention will be necessary. But these elements of confidence and security are not everywhere found; and where that is unfortunately the case, the United States are called upon to be more vigilant in watching over their citizens, and to interfere efficiently for their protection, when they are subjected to tortuous proceedings by the direct action of the government, or by the indisposition or inability to discharge its duties." Relying, we say, upon this ultimate protection in case of necessity, but having good reason to believe that the necessity could not arise,