independently of the Act, whereby he releases the debtor, any co- CHAP. XIII. debtor or surety for the same debt is also released; unless the composition contains an express reservation of the rights of the creditor against them (d). And a composition deed made by agreement independently of the Act purporting to release the debtor "in like manner as if he had obtained a discharge in bankruptcy," was construed to be an unqualified release without any reserve of remedies, and therefore it released co-debtors and sureties (e). surety to dividend. Upon the bankruptcy of the principal debtor, if the surety is Right of made to pay the debt, he stands in the place of the creditor to claim the dividend from the bankrupt's estate (ƒ). If the creditor proves for the debt and receives the dividend, the surety remains liable for the unpaid balance of the debt; either in full, or to the limit to which he has guaranteed the debt (g). If the surety has guaranteed part only of a larger debt, or has guaranteed credit to a certain amount only and the creditor has given credit to a larger amount, the surety is presumptively entitled to the dividend on the amount guaranteed in reduction of his liability, and the creditor cannot claim the whole dividend on account of the unguaranteed balance (h); unless he has expressly stipulated in the guarantee that he should have the whole dividend besides his recourse to the surety (i). In such cases "it is a question of construction for the court to say whether the intention was to guarantee the whole debt with a limitation on the liability of the surety, or to guarantee a part of the debt only" (k). The creditor may prove the whole debt in the bankruptcy of the debtor, though the surety holds security from the latter, and could prove only for the balance of the debt after valuing the security (1). . An order of discharge in bankruptcy releases all foreign debts Foreign and contracts which are provable from any remedy in the courts (d) See ante, p. 657. (e) Cragoe v. Jones, L. R. 8 Ex. 81; 42 L. J. Ex. 68. (f) See ante, p. 305. (g) Ellis v. Emmanuel, 1 Ex. D. 157; 46 L. J. Ex. 25; Ex p. National Prov. Bank, 17 C. D. 98. See Ex p. Gilbey, 8 C. D. 248; 47 L. J. B. 49. (h) Thornton v. McKewan, 1 H. & M. 525 32 L. J. C. 69; Gray v. Seckham, L. R. 7 Ch. 680; 42 L. J. C. 127. (i) Midland Banking Co. v. Chambers, L. R. 4 Ch. 398; 38 L. J. C. 478; Ex p. 61. (k) Per cur. Ellis v. Emmanuel, 1 Ex. D. 157; 46 L. J. Ex. 25. (1) Midland Bank Co. v. Chambers, L. R. 4 Ch. 398; 38 L. J. C. 478; Ex p. Braithwaite, 46 L. J. B. 109. See Ex p. Cama, L. R. 9 Ch. 686; 43 L. J. C. 683. debts. PART IV. Foreign of this country (m). It also releases provable debts from any remedy in courts over which the legislative jurisdiction extends and over which it purports to operate as it primâ facie does in Scotch, Irish and colonial courts (n). And the bankruptcy has a co-extensive jurisdiction in transferring the property of the bankrupt to the trustee, including land in a colony so far as it is transferable by the colonial law (0). Accordingly an English bankruptcy has been held a bar to an action in a Scotch court for a debt contracted in Scotland (p); and to an action in the Supreme Court of Calcutta for a debt contracted in that jurisdiction (). Where an English bankrupt, having been sued in Canada upon a Canadian debt and judgment recovered against him, was afterwards sued in this country upon the original debt and upon the judgment; it was held that the English bankruptcy could be pleaded to the debt, but not to the judgment, because the debtor might have pleaded it to the action in Canada and had omitted to do so (r).-Upon the same principle a Scotch sequestration under an Imperial statute was held to bar an action for an English debt in an English court (s). A discharge by the Irish Bankrupt Act, since the Union, was held to bar all the debtor's liabilities both to his Irish and his English creditors (t). And a discharge in Newfoundland under an Act of the Imperial Parliament was held to release a debt of the bankrupt in this country (u). But a discharge in Scotland under process of cessio bonorum, which is peculiar to Scotch law and confined in effect to discharging the person of the debtor in respect of Scotch debts, was held to be no bar to an action in England for an English debt (x). The release of a debt by the bankruptcy law of the country in bankruptcy. which it was contracted extinguishes the debt as a cause of action in any other country; but the release of a debt by the bankruptcy law of any other country than that in which it was contracted operates only within the jurisdiction of that bankruptcy law, and (m) Per cur. Ellis v. McHenry, L. R. 6 C. P. 236; 40 L. J. C. P. 109. (n) Ellis v. McHenry, supra; New Zealand Loan Co. v. Morrison, (1898) A. C. 369; 67 L. J. P. C. 10. See Gill v. Barron, L. R. 2 P. C. 157; 37 L. J. P. C. 33. (0) Callender v. Lagos, (1891) A. C. 460; 60 L. J. P. C. 33. (p) Royal Bank of Scotland v. Cuthbert, 1 Rose, 462. (9) Edwards v. Ronald, 1 Knapp, 259; 12 E. R. 317. (r) Ellis v. McHenry, supra. (t) Ferguson v. Spencer, 1 Man. & G. 987; Simpson v. Marabita, L. R. 4 Q. B. 257; 38 L. J. Q. B. 76. See Ex p. McCulloch, 14 C. D. 717. (u) Philpotts v. Reed, 1 B. & B. 294. (x) Phillips v. Allan, 8 B. & C. 477. is no release in any other country (y); accordingly it is no answer CHAP. XIII. to an action upon a contract made in this country, that the contract was discharged by a judicial liquidation in France (≈); or that it was discharged under a Bankruptcy Act of a colonial legislature, having no jurisdiction beyond the colony (a).-If the creditor claims the benefit of the foreign bankruptcy and accepts a share of the estate, he submits to the jurisdiction of the foreign court, and is bound by the proceedings; but not if he appears only for the purpose of opposing the proceedings (b). After receiving a dividend in the foreign bankruptcy the creditor may prove in an English bankruptcy of the debtor; but he must bring the dividend received into the common fund (c). (y) Smith v. Buchanan, 1 East, 6; New Zealand Loan Co. v. Morrison, (1898) A. C. 349; 67 L. J. P. C. 10. (z) Tharsis Co. v. Soc. des Métaux, 58 L. J. Q. B. 435. See Gibbs v. Soc. des Métaux, 25 Q. B. D. 399; 59 L. J. Q. B. 510. (a) Bartley v. Hodges, 1 B. & S. 375; 30 L. J. Q. B. 352. (b) Phillips v. Allan, 8 B. & C. 477. See Ex p. Robertson, L. R. 20 Eq. 733; 44 L. J. B. 99; Re Gaudet Frères Co., 48 L. J. C. 818. (c) Banco de Portugal v. Waddell, 5 Ap. Ca. 161; 49 L. J. B. 33. PART V. REMEDIES FOR BREACH OF CONTRACT. CHAPTER I. DAMAGES AND INTEREST. SECT. I.-PRINCIPLES OF THE LAW OF DAMAGES. PAGE ...... General and special damages-measure of damages-proximate 740 Special damages contemplated by the parties-notice of special 743 Damages for injury to feelings-personal inconvenience 744 745 747 PART V. General and special damages. ... Nominal damages—detention of money-detention of goods .... 749 A BREACH of contract is attended with two kinds of remedy: an action for damages or pecuniary compensation; and an action for specific performance of the contract according to its terms, so far as the breach will admit. The former is the only remedy of the common law; the latter is supplied upon principles of equity. The right of action for damages is regulated by the Law of Procedure, which is beyond the scope of this treatise; but the damages, forming the substance of the right, are ascertained and measured according to general rules and principles, which in their application to contracts are here noticed. The damages recoverable in an action are distinguished for some purposes as general and special damages: the former being the consequence of a breach of contract or other injurious act irrespective of any special circumstances, as the loss of money caused by nonpayment of a debt, or the deprivation of goods caused by a failure to deliver under a contract of sale; the latter being the further consequence caused by the breach of contract happening under special circumstances, as where goods are contracted to be delivered for a special purpose which fails by reason of the default in delivery. And it is a rule of pleading, that special damage must be charged with particularity in the statement of claim, otherwise it is not admitted to proof. General damages are sufficiently indicated by the statement of the breach of contract, which imports all the consequences that might generally be expected to happen; and if the plaintiff fails to prove the special damage charged, he may still recover the general damages. CHAP. I. SECT. I. The measure of general damages is the pecuniary difference Measure of general between the state of the plaintiff upon the breach of the contract, damages. and what it would have been if the contract had been performed; "he is, so far as money can do it, to be placed in the same situation as if the contract had been performed" (a). The measure is in general the value of the performance to the plaintiff, not the cost of performance to the defendant; as in the case of the breach of a contract to enclose land of the plaintiff with a wall, the measure of damage was held to be the increase of value of the land by reason of the wall, which might be more or less than the cost of building the wall or might be merely nominal (6). And in an action by a landlord against his tenant on the implied covenant not to commit waste during the term, the measure of damage is not the cost of restoring the waste, but the deterioration in value of the reversion (c). So in an action upon a covenant to repair for a breach during the term the measure of damages is not the then cost of repairs, but the diminution in value of the reversion; but at the end of the term the measure of damages is the full value of the repairs (d).-Nor is the consideration which the plaintiff gave for Consideration the contract material to the damages or compensation for the given. breach; as in the case of an action for not delivering goods sold the damages depend upon the market value at the time of the breach, and not upon the fact of an enhanced price having been (a) Parke, B., Robinson v. Harman, 1 Ex. 855; Lock v. Furze, L. R. 1 C. P. 451; 35 L. J. C. P. 141; Strutt v. Farlar, 16 M. & W. 249; 16 L. J. Ex. 84; Wall v. City of London Real Property Co., L. R. 9 Q. B. 253; 43 L. J. Q. B. 75; Michael v. Hart & Co., (1902) 1 K. B. 482; 71 L. J. K. B. 265. (b) Wigsell v. Blind School, 8 Q. B. D. 357; 51 L. J. Q. B. 330. See Re 613. (d) Joyner v. Weeks, (1891) 2 Q. B. 31; 60 L. J. Q. B. 510; Conquest v. Ebbetts, (1896) A. C. 490; 65 L. J. C. 808. See Henderson v. Thorne, (1893) 2 Q. B. 164; 62 L. J. Q. B. 586. |