the damages. (Millington v. Loring, 6 Q. B. D. 190; 50 L. J. Q. B. 214; "Pleading in General," ante, p. 8; and see Newman v. Smith, 1 Salk. 642; Dix v. Brookes, 1 Str. 61.)

Thus, in an action of trespass for entering the plaintiff's house, the plaintiff may allege that the defendant did it under a false charge that the plaintiff had stolen goods therein (Bracegirdle v. Orford, 2 M. & S. 77); and the jury may take all the circumstances into their consideration in assessing the amount of damages (Merest v. Harvey, 5 Taunt. 442; and see Wilson v. Hicks, 26 L. J. Ex. 242; Emblen v. Myers, 6 H. & N. 54; 30 L. J. Ex. 71; Bell v. Mid. Ry. Co., 10 C. B. N. S. 287; 30 L. J. C. P. 273).

There appears to be a distinction between actions of tort and of contract in this respect; in the latter, in general, no damages more than nominal can be recovered that are not capable of being specifically stated and appreciated, except in the case of a breach of a contract to marry, where the injury to the plaintiff's feelings may also be taken into account. (Hamlin v. G. N. Ry. Co., 1 H. & N. 408; 26 L. J. Ex. 20; Frost v. Knight, L. R. 7 Ex. 111, 116; 41 L. J. Ex. 81; Smith v. Woodfine, 1 C. B. N. S. 660; Berry v. Da Costa, L. R. 1 C. P. 331; 35 L. J. C. P. 191; and see Emblen v. Myers, supra; Millington v. Loring, supra.)

When the injury, whether a tort or a breach of contract, has, as a natural and proximate consequence, caused the plaintiff to incur or become liable for expenses, they should be stated as special damage. (See R. S. C. 1883, App. C., Sect. V., No. 8; Sect. VI., Nos. 3, 5, 15.) It should be stated that the plaintiff has paid the money when that is the case (see R. S. C. 1883, App. C., Sect. V., No. 8), but a liability to pay is, in general, sufficient to entitle the plaintiff to recover for expenses or charges which are properly specified (Richardson v. Chasen, 10 Q. B. 756; Spark v. Heslop, 1 E. & E. 563; 28 L. J. Q. B. 197; Randall v. Raper, E. B. & E. 84; 27 L. J. Q. B. 266; Josling v. Irvine, 6 H. & N. 512; 30 L. J. Ex. 78).

If the plaintiff fails in proving the special damage alleged, he may still resort to and recover his general damages. (Smith v. Thomas, 2 Bing. N. C. 372, 380.)

In an action for defamation, the plaintiff was held entitled to prove and recover for a general loss of trade, though the declaration also alleged a loss of particular customers which he failed to prove. (Evans v. Harries, 1 H. & N. 251; 26 L. J. Ex. 31; Riding v. Smith, 1 Ex. D. 91; 45 L. J. Ex. 281.)

The damages for a breach of contract do not include damages purely speculative, and not within the contemplation of the contracting parties at the time of the contract. (The Parana, 2 P. D. 118.)

In some cases damages may properly be estimated upon the principle that if one of the parties to a contract does not perform his part of it, the other may perform it for him as reasonably near as may be, and may claim from him as damage the reasonable expense of so doing. (Le Blanche v. L. & N. W. Ry. Co., 1 C. P. D. 286, 313; 45 L. J. C. P. 521; Prehn v. Royal Bank of Liverpool, L. R. 5 Ex. 92; 39 L. J. Ex. 41; and see Hinde v. Liddell, L. R. 10 Q. B. 265; 44 L. J. Q. B. 105, cited "Sale of Goods," post, p. 321.) But the general rule with respect to the measure of damages in actions for breach of contract seems to be that the plaintiff (subject to the rules mentioned below as to remoteness) is entitled to recover as damages the pecuniary amount of the difference between the position of the plaintiff upon the breach of the contract and that in which he would have been if

the contract had been performed, so that the cost of performance cannot in all cases be deemed a correct measure of damages. (Wigsell v. School for Blind, 8 Q. B. D. 357, 364; 51 L. J. Q. B. 330; Robinson v. Harman, 1 Ex. 855.)

Damages may be claimed and assessed for prospective loss which it is reasonably certain will occur by reason of the cause of action (2 Wms. Saund., 1871 ed., p. 496; Hodsoll v. Stallebrass, 11 A. & E. 301; Phillips v. L. & S. W. Ry. Co., 5 Q. B. D. 78; 49 L. J. Q. B. 233; Lambkin v. S. E. Ry. Co., 5 App. Cas. 352); but not if such future damage constitutes itself a new cause of action (see Leake on Contracts, 3rd ed. p. 904, and the cases below cited).

Damages, whether existing or prospective, resulting from one and the same cause of action, can only be assessed and recovered once for all. (Gibbs v. Cruikshank, L. R. 8 C. P. 454; 42 L. J. C. P. 273; Brunsden v. Humphrey, 14 Q. B. D. 141; 53 L. J. Q. B. 476; Darley Main Co. v. Mitchell, 11 App. Cas. 127, 132, 144; 55 L. J. Q. B. 529.)

In the case of a continuing cause of action, such as a breach of covenant by an apprentice to serve his master, or a breach of covenant to keep premises in repair, or a continuing trespass, damages are recoverable only to the time of their assessment, the continuation of the breach or injury forming a new cause for which a fresh action may be brought. (See Horn v. Chandler, 1 Mod. 271; Coward v. Gregory, L. R. 2 C. P. 153; 36 L. J. C. P. 1; Crumbie v. Wallsend Local Board, (1891) 1 Q. B. 503; and see Holmes v. Wilson, 10 A. & E. 503; Bowyer v. Cook, 4 C. B. 236; and the rule next cited.)

By O. XXXVI. r. 58, "Where damages are to be assessed in respect of any continuing cause of action, they shall be assessed down to the time of the assessment." A continuous cause of action is one which arises from the repetition of acts or omissions. (See Hole v. Chard Union, (1894) 1 Ch. 293; 63 L. J. Ch. 469; Crumbie v. Wallsend Local Board, supra.)

Damage which is too remote from the injurious act to be connected with it as a natural and proximate consequence cannot be recovered, even though expressly claimed as special damage. (Hoey v. Felton, 11 C. B. N. S. 142; 31 L. J. C. P. 105; Sneesby v. Lanc. & Y. Ry. Co., 1 Q. B. D. 42; McMahon v. Field, 7 Q. B. D. 591; 50 L. J. Ex. 552; Victorian Rys. Commissioners v. Coultas, 13 App. Cas. 222; The Argentino, 14 App. Cas. 519; The City of Lincoln, 15 P. D. 15.)

The damages recoverable in an action for breach of contract may include not only such consequences as may be considered as arising naturally, i. e. according to the usual course of things, from the breach itself, but such also as may reasonably be supposed to have been in the contemplation of the parties, at the time when they made the contract, as the probable result of the breach of it. (See Horne v. Mid. Ry. Co., L. R. 8 C. P. 131, 137; 42 L. J. C. P. 59; Hadley v. Baxendale, 9 Ex. 341; 23 L. J. Ex. 179; Sanders v. Stuart, 1 C. P. D. 326; 45 L. J. C. P. 682; Hydraulic, &c. Co. v. McHaffie, 4 Q. B. D. 670; 27 W. R. 221; GrébertBorgniss v. Nugent, 15 Q. B. D. 85; 54 L. J. Q. B. 511; Schulze v. G. E. Ry. Co., 19 Q. B. D. 30; 56 L. J. Q. B. 442; Hammond v. Bussey, 20 Q. B. D. 79; 57 L. J. Q. B. 58; Halestrap v. Gregory, (1895) 1 Q. B. 561 ; Mowbray v. Merryweather, (1895) 2 Q. B. 640.)

In some cases notice to the defendant of the facts out of which such last-mentioned damages have arisen will be material as showing that the results which have happened were within the contemplation of the parties at the time of the contract. (Ib.) Mere notice, however, of the special

circumstances will not in itself render the party breaking the contract liable for the special consequences of the breach of contract, unless it appears or can be inferred that the contract was made upon the basis of those circumstances. (Horne v. Mid. Ry. Co., supra; Grébert-Borgniss v. Nugent, supra; Hydraulic, &c. Co. v. McHaffie, supra.) In pleading in such cases, it may be prudent to allege the fact of such notice (see 0. XIX. rr. 4, 23, cited ante, pp. 7, 10), and to state also that the contract sued upon was made upon the basis of the circumstances of which notice was given.

Matter which would constitute a distinct cause of action is not ordinarily available unless pleaded as such. If, however, such matter is also evidence in support of the claim sued for, it may, in general, be proved at the trial without being pleaded. (See Millington v. Loring, 6 Q. B. D. 190; 50 L. J. Q. B. 214; and the cases next cited.) Thus, it has been held that, in an action for defamation, subsequent libels published by the defendant of the plaintiff are admissible in evidence to prove the malicious motive of the defendant, in order to aggravate the damages for the libel complained of, and cannot be excluded on the ground that they may disclose distinct causes of action. (Pearson v. Lemaitre, M. & G. 700; Darby v. Oakley, 1 H. & N. 1; and see Hemmings v. Gasson, E. B. & E. 346; 27 L. J. Q. B. 252.)

In general, it is unnecessary for the defendant to plead any denial or defence in answer to the plaintiff's allegations of special damage, for it is provided by O. XXI. r. 4, that "no denial or defence shall be necessary as to damages claimed or their amount; but they shall be deemed to be put in issue in all cases, unless expressly admitted." (See also O. XIX. r. 17, cited "Denials," post, p. 548.) It would seem that these rules apply to allegations of the fact of damage, where such damage is the gist of the action, and essential to its maintenance; but where in such cases the fact of the alleged damage is disputed, it would, nevertheless, seem advisable, or, at any rate, not improper, that the defendant should plead a denial of it, or state expressly that he does not admit it. (See "Defamation," post, p. 875, and the form cited post, p. 992.)

In actions for defamation, the defendant, if he intends to adduce evidence of certain specified matters in mitigation of damages, is expressly required to give previous notice or particulars thereof to his opponent, and it seems that in those cases such notice or particulars may be given either in the pleadings or separately. (See O. XXXVI. r. 37; and 6 & 7 Vict. c. 96, s. 1, cited "Defamation," post, pp. 886, 887.) And it is a general rule in all actions for unliquidated damages, that matter which, if pleaded, would amount to an answer or justification of the cause of action cannot, without being pleaded, be proved in mitigation of damages. (Watson v. Christie, 2 B. & P. 224; Linford v. Lake, 3 H. & N. 276; Perkins v. Vaughan, 4 M. & G. 988; and see Speck v. Phillips, 5 M. & W. 279.)

As to damages in lieu of an injunction, see "Injunction," post, p. 447. As to treble damages for pound-breach, under the 2 W. & M. sess. 1, c. 5, see "Distress," post, p. 423.

As to liquidated damages, see "Liquidated Damages," post, p. 278. Relief other than damages or payment of debt.]-"The High Court of Justice and the Court of Appeal respectively, in the exercise of the jurisdiction vested in them by this Act in every cause or matter pending before them respectively, shall have power to grant, and shall grant, either absolutely or on such reasonable terms and conditions as to them shall seem just, all such remedies whatsoever as any of the parties thereto may

appear to be entitled to in respect of any and every legal or equitable claim properly brought forward by them respectively in such cause or matter; so that, as far as possible, all matters so in controversy between the said parties respectively may be completely and finally determined, and all multiplicity of legal proceedings concerning any of such matters avoided." (Jud. Act, 1873, s. 24 (7); see also the other sub-sections of s. 24 and s. 25 of the same Act.)

The remedy or relief which is sought in the action should, in general, be expressly claimed both on the writ and in the statement of claim, whether it be damages, the appointment of a receiver, a mandamus, an injunction, or specific performance of a contract, or whatever else it may be. (O. II. r. 1; 0. XIX. r. 2; 0. XX. r. 6.) As to powers of amendment, see O. XXVIII.; and “Amendment of Pleadings," ante, p. 14.

If the claim for a mandamus or injunction, or the appointment of a receiver, is a substantive part of the relief for the obtaining of which the action is brought, the indorsement upon the writ ought to show such claim; but if the necessity therefor arises incidentally in the course of the action, the required relief will be granted though not claimed upon the writ. (See Colebourne v. Colebourne, 1 Ch. D. 690; 45 L. J. Ch. 749.)

In dealing with claims for specific performance, for rectification of instruments in writing, or for an account, or other claims with which the Chancery Division of the High Court is more competent to deal than the Queen's Bench Division, it must be remembered that there are ample powers of transfer of actions from one Division to another. (See Jud. Act, 1875, s. 11; 0. XLIX.)

If the defendant, by way of counter-claim, seeks relief which the Chancery Division alone has the requisite machinery to administer (e.g., where specific performance is sought), this may afford good reason for an order to transfer the whole action to the Chancery Division (Holloway v. York, 2 Ex. D. 333; Hillman v. Mayhew, 1 Ex. D. 132; 45 L. J. Ex. 334 ; London Land Co. v. Harris, 13 Q. B. D. 540; 53 L. J. Q. B. 536); but a defendant in such a case is not entitled as of course to such an order, as otherwise any defendant might put in a counterclaim for the specific performance of some agreement and then apply for a transfer, and thus everything might, at the will of the defendant, be brought into the Chancery Division (Storey v. Waddle, 4 Q. B. D. 289, 290).

As to injunctions and mandamus, see further, post, pp. 446, 462.

Where either party seeks relief which can be more effectually afforded by a transfer, that fact may furnish ground for such transfer. (See Mangan v. Metropolitan Electric Supply Co., (1891) 2 Ch. 551, a case transferred to the Common Law Division in order to have it tried by a jury.)

66

Venue.]-The venue is the county (or place treated as a county for assize purposes) in which it is proposed that the action shall be tried, as, for instance, "Lincolnshire,' Lancashire, West Derby Division, "Bristol," &c. (See R. S. C. 1883, App. C., Sects. IV., V., VI. and VII.) Where no place for trial is named by the plaintiff, the venue is taken to be Middlesex. (See O. XXXVI. r. 1, below cited, and Locke v. White, 33 Ch. D. 312; 55 L. J. Ch. 731, below cited.) Such cities or towns corporate as are counties of themselves are treated as counties for assize purposes. (1 Stephen's Blackstone, 11th ed., p. 136; see Itchin Bridge Co. v. Local Board of Southampton, below cited.) For some purposes London and Middlesex are now (subject to the Rules of the Supreme Court) to be considered as one county. (See the Local Government Act, 1888 (51 & 52 Vict. c. 41), s. 89 (3).)

B.L.

F

By an Order in Council dated the 4th May, 1864 (made in pursuance of the 3 & 4 Will. IV. c. 71), the county of Lancaster is divided, for the purposes of the assizes, into " Lancashire, Northern Division," "Lancashire, West Derby Division," and "Lancashire, Salford Division;" and the venue must be so stated according to whether the action is intended to be tried at Lancaster, Liverpool, or Manchester.

In like manner by an Order in Council dated the 10th June, 1864, appointing assizes to be held at two places in the county of York, the venue is to be laid in "Yorkshire, North and East Riding Division," if the action is to be tried at York, or "Yorkshire, West Riding Division," if it is to be tried at Leeds.

It is provided by the above-mentioned Orders in Council, with respect to actions in which the venue is by law local (vide infra), that these divisions of Lancashire and Yorkshire are to be treated as if they were separate counties, but that if the venue is laid in one of the divisions of Lancashire or Yorkshire, the action may be ordered to be tried in another division. (As to changing the place of trial, see further infra.)

By an Order in Council dated the 26th of June, 1884, the county of Warwick is divided for assize purposes into two divisions, called respectively the "Warwick Division" and the "Birmingham Division."

Previously to the Judicature Acts, the classification of actions with regard to venue was as follows:-All actions were either local or transitory. In the former the venue was local, that is, it was required to be laid in the county (or place treated as a county for assize purposes) in which the cause of action arose; in the latter, it might be laid in any county (or place treated as a county for assize purposes) at the option of the plaintiff, subject to any application by the defendant to change the venue. Local actions included not only actions in which the venue was made local by statute (as to which, vide infra), but also many actions in which the venue was local at common law, e.g., most actions for wrongs in respect of real property. (See British South Africa Co. v. Companhia de Moçambique, (1893) Ă. C. 602; 63 L. J. Q. B. 70.) All actions which were not local were transitory. (See Bullen & Leake, 3rd ed., p. 2.)

It is now provided by O. XXXVI. r. 1, that "There shall be no local venue for the trial of any action, except where otherwise provided by statute. Every action in every Division shall, unless the Court or a judge otherwise orders, be tried in the county or place named in the statement of claim, or (where no statement of claim has been delivered or required) by a notice in writing to be served on the defendant, or his solicitor, within six days after appearance. Where no place of trial is named, the place of trial shall, unless the Court or a judge shall otherwise order, be the county of Middlesex."

By r. 1A., "The provisions of O. XXXVI. r. 1, shall apply to every action, notwithstanding that it may have been assigned to any judge."

It is also provided by O. XX. r. 5, with respect to cases in which a statement of claim is delivered, that "The statement of claim must, in all cases in which it is proposed that the trial should be elsewhere than in Middlesex, show the proposed place of trial."

The provisions of the last-cited rules with respect to statements of claim apply not only in cases where a statement of claim is delivered separately, but also in cases where a statement of claim is specially indorsed on the writ. (See R. S. C. 1883, App. A., Part I., No. 2; and “ Special Indorsements," post, p. 77.)

It would seem that where two or more causes of action in respect of which the venue is still local by statute, and which have arisen in dif