holding as the mere agents of the United States, while the executors of Rittenhouse held the money until a better right was established. But the very next case in this court of a similar character (Meigs v. McClung's Lessee, 9 Cranch, 11) shows that this distinction was not recognized as sound. The property sued for in that case was land on which the United States had a garrison erected at a cost of $30,000, and the defendants were the military officers in possession, and the very question now in issue was raised by these officers, who according to the bill of exceptions, insisted that the action could not be maintained against them, "because the land was occupied by the United States troops, and the defendant officers of the United States, for the benefit of the United States and by their direction." They further insisted, says the bill of exceptions, that the United States had a right by the Constitution to appropriate the property of the individual citizen. The court below overruled these objections, and held that the title being in plaintiff he might recover, and that "if the land was private property the United States could not have intended to deprive the individual of it without making him compensation therefor."

Although the judgment of the Circuit Court was in favor of the plaintiff, and its result was to turn the soldiers and officers out of possession and deliver it to plaintiff, Chief Justice Marshall concludes his opinion in this emphatic language: "This court is unanimously and clearly of opinion that the Circuit Court committed no error in instructing the jury that the Indian title was extinguished to the land in controversy, and that the plaintiff below might sustain his action.”

We are unable to discover any difference whatever in regard to the objection we are now considering between this case and the one before us.

Impressed by the force of this argument, counsel say that the question of the objection arising out of the possession of the United States was not considered in that case because it was not urged in argument by counsel. But it is manifest that it was so set out in the bill of exceptions, and so much relied on in the court below that it could not have escaped the attention of the court and of the eminent man who had only six years before delivered the opinion in the case of the United States v. Peters. Nor could the case have been decided as it was if the doctrine now contended for be sound, since the effect of the judgment was to dispossess the United States of an occupied garrison by the judgment against the officers in charge of it.

In the case of Wilcox v. Jackson, 13 Peters, 498, the contest was over a fort of the United States which had been in its continued possession for over thirty years, and was so occupied when the suit was brought against its officers to dispossess them. The case came from the Supreme Court of Illinois to this court on writ of error, and the judgment in favor of the plaintiff was reversed. The question now under consideration was not passed upon directly by this court. But a long examination of the question whether the plaintiff had proved title in Himself, and a decision that while the State Courts of Illinois held a certificate of purchase from the United States to be a legal title under her statute that statute was invalid, might all have been avoided by the simple declaration that the United States, being in possession of the property as a fort, no action at law against its officers could be maintained. But no such proposition was advanced by counsel on either side or considered by the court.

There is a very satisfactory reason for this. The cases of United States v. Peters, of Meigs v. McClung, and of Osborn v. United States Bank, had all involved the same question, and in the first and last of these cases the principle was fully discussed, and in the other

necessarily decided in the negative. And in the case of Georgia v. Madrazo, 1 Peters, 110, the court had referred to these cases, and again asserted the principle, quoting the language of them. Counsel were not justified in asking the court to reconsider it while most of the judges were still on the bench, including the Chief Justice, who had made those decisions.

The case of Osborn v. United States Bank, 9 Wheat. 738, is a leading case, remarkable in many respects, and in none more than in those resembling the one before

us.

The case was this: The State of Ohio having levied a tax upon the branch of the Bank of the United States located in that State, which the bank refused to pay, Osborn, auditor of the State of Ohio, was about to proceed to collect said tax by a seizure of the money of the bank in its vaults, and an amended bill alleged that he had so seized a hundred thousand dollars, and while aware that an injunction had been issued by the Circuit Court of the United States on the prayer of the bank, the money so seized had been delivered to the treasurer of the State, Curry, and afterward came to the possession of Sullivan, who had succeeded Curry as treasurer. Both Curry and Sullivan were made defendants as well as Osborne and his assistant Harper. One of the objections pressed with pertinacity all through the case to the jurisdiction of the court was the conceded fact that the State of Ohio, though not made a defendant to the bill, was the real party in interest. That all the parties sued were her officers, her auditor, her treasurer, and their agents, concerning acts done in their official character, and in obedience to her laws. It was conceded that the State could not be sued, and it was earnestly argued there, as here, that what could not be done directly could not be done by suing her officers. And it was insisted that while the State could not be brought before the court, it was a necessary party to the relief sought, namely, the return of the money and obedience to the injunction, and that the bill must be dismissed.

A few citations from the opinion of Marshall, C. J., will show the views entertained by the court on the question thus raised. At page 842 of the long report of the case he says:

"If the State of Ohio could have been made a party defendant, it can scarcely be denied that this would be a strong case for an injunction. The objection is that as the real party cannot be brought before the court, a suit cannot be sustained against the agents of that party; and cases have been cited to show that a court of chancery will not make a decree unless all those who are substantially interested be made parties to the suit. This is certainly true where it is in the power of the plaintiff to make them parties, but if the person who is the real principal, the person who is the true source of the mischief, by whose power and for whose advantage it is done, be himself above the law, be exempt from all judicial process, it would be subversive of the best established principles to say that that the laws could not afford the same remedies against the agent employed in doing the wrong which they would afford against him could his principal be joined in the snit."

In another place he says: "The process is substantially, though not in form, against the State, * * ** and the direct interest of the State in the suit as brought is admitted; and had it been in the power of the bank to make it a party, perhaps no decree ought to have been pronounced in the cause until the State was before the court. But this was not in the power of the bank, *** and the very difficult question is to be decided, whether in such a case, the court may act upon agents employed by the State and on the property in their hands." In answering this question he says: "A denial of jurisdiction forbids all inquiry

into the nature of the case. It applies to cases perfectly clear in themselves; to cases where the government is in the exercise of its best established and most essential powers, as well as to those which may be deemed questionable. It asserts that the agents of a State, alleging the authority of a law void in itself because repugnant to the Constitution, may arrest the execution of any law in the United States." Again: "The bank contends that all cases in which jurisdiction depends on the character of the party, reference is made to the party on the record, not to one who may be interested, but is not shown by the record to be a party." "If this question were to be determined on the authority of English decisions, it is believed that no case can be adduced where any person can be considered as a party who is not made so in the record." Again: "In cases where a State is a party on the record the question of jurisdiction is decided by inspection. If jurisdiction depend not on this plain fact, but on the interest of the State, what rule has the Constitution given by which this interest is to be measured? If no rule is given, is it to be settled by the court? If so, the curious anomaly is presented of a court examining the whole testimony of a cause, inquiring into and deciding on the extent of a State's interest, without having a right to exercise any jurisdiction in the case. Can this inquiry be made without the exercise of jurisdiction?"

The Supreme Court affirmed the decree of the Circuit Court for the District of Ohio, ordering a restitution of the money.

The case of Grisar v. McDowell, 6 Wall. 363, was an action in the Circuit Court against General McDowell to recover possession of property held by him as an officer of the United States which had been set apart and reserved for military purposes. Though this was set up by him as part of his defense, it does not appear that in the argument of counsel for the government, or in the opinion of the court, any importance was attached to this circumstance, but the opinion of Mr. Justice Field in this court examines the case elaborately on the question whether plaintiff or the government had the title to the land. If the doctrine now contended for is sound, the case should have proceeded no further on the suggestion, not denied, that the property was held for public use by a military officer under orders from the president.

The case of Brown v. Huger, 21 How. 305, is of a precisely similar character, for the possession of the military arsenal at Harper's Ferry, in which, while the fact of its possession by the United States was set out in the bill of exceptions, no attention is given to that fact in the opinion of this court, which consists of an elaborate examination of plaintiff's title, held to be insufficient.

These decisions have never been overruled. On the contrary, as late as the case of Davis v. Gray, 16 Wall. 204, the case of Osborn v. United States Bank is cited with approval as establishing these among other propositious:

64

Where the State is concerned, the State should be made a party, if it can be done. That it cannot be done is a sufficient reason for the omission to do it, and the court may proceed to decree against the officers of the State in all respect as if the State were a party to the record.

"In deciding who are parties to the suit, the court will not look beyond the record. Making a State officer a party does not make the State a party, although her law may have prompted his action, and the State may stand behind him as a real party in interest. A State can be made a party only by shaping the bill expressly with that view, as where individuals or corporations are intended to be put in that relation to the case."

Though not prepared to say now that the court can

proceed against the officer in "all respects" as if the State were a party, this may be taken as intimating in a general way the views of the court at that time. The cases of The Siren, 7 Wall. 152, and The Davis, 10 id. 15, are instances where the court has held that property of the United States may be dealt with by subjecting it to maritime liens where this can be done without making the United States a party.

This examination of the cases in this court establishes clearly this result: that the proposition that when an individual is sued in regard to property which he holds as officer or agent of the United States, his possession cannot be disturbed when that fact is brought to the attention of the court, has been overruled and denied in every case where it has been necessary to decide it, and that in many others where the record shows that the case as tried below actually and clearly presented that defense, it was neither urged by counsel nor considered by the court here, though if it had been a good defense, it would have avoided the necessity of a long inquiry into plaintiff's title and of other perplexing questions, and have quickly disposed of the case. And we see no escape from the conclusion that during all this period the court has held the principle to be unsound, and in the class of cases like the present, represented by Wilcox v. Jackson, Brown v. Huger, Grisar v. McDowell, it was not thought necessary to re-examine a proposition so often and so clearly overruled in previous, well considered decisions.

It is true that there are expressions in the opinion of the court in the case of Carr v. United States, 98 U. S. 433, which are relied on by counsel with much confidence as asserting a different doctrine.

That was a case in which the United States had filed a bill in the Circuit Court for the District of California, to quiet title to the land on which a marine hospital had been built. To rebut the evidence of title offered by the plaintiffs, the defendant had relied on certain judgments rendered in the State courts, in which the unsuccessful parties set up title in the United States under which they claimed. It appeared that the person who was district attorney of the United States had defended these actions, and the question under discussion was whether the United States was estopped by the proceedings so as to be unable to sustain the suit to quiet title. After stating the general doctrine that the United States cannot be sued without her consent, and the further proposition that no such consent can be given except by Congress, which is a sufficient reason why they cannot be concluded by an action to which they are not parties, the learned justice who delivered the opinion proceeded to make some remarks as to cases in which actions would or would not lie against officers of the government in relation to property of the United States in their possession. As these remarks were not necessary to the decision of the point then in question, as the action was equally inconclusive against the United States, whether the persons sued were officers of the government or not, these remarks, if they have the meaning which counsel attribute to them, must rest for their weight as authority on the high character of the judge who delivered them, and not on that of the court which decided the case.

That the United States are not bound by a judgment to which they are not parties, and that no officer of the government can, by defending a suit against private persons, conclude the United States by the judgment in such case, was sufficient to decide that case, and was all that was decided.

The fact that the property which is the subject of this controversy is devoted to public uses, is strongly nrged as a reason why those who are so using it under the authority of the United States shall not be sued for its possession even by one who proves a clear title to that possession. In this connection many cases of imaginary

evils have been suggested, if the contrary doctrine should prevail. Among these are a supposed seizure of vessels of war, invasions of forts and arsenals of the United States. Hypothetical cases of great evils may be suggested by a particularly fruitful imagination in regard to almost every law upon which depend the rights of the individual or of the government, and if the existence of laws is to depend upon their capacity to withstand such criticism, the whole fabric of the law must fail.

be afforded to him when it is seen that his opponent is an officer of the United States, claiming to act under its authority; for as Chief Justice Marshall says, to examine whether this authority is rightfully assumed is the exercise of jurisdiction, and must lead to the decision of the merits of the question. The objection of the plaintiffs in error necessarily forbids any inquiry into the truth of the assumption that the parties setting up such authority are lawfully possessed of it, for the argument is that the formal suggestion of the existence of such authority forbids any inquiry into the truth of the suggestion.

But why should not the truth of the suggestion and the lawfulness of the authority be made the object of

In the case supposed the court has before it a plaintiff capable of suing, a defendant who has no personal exemption from suit, and a cause of action cognizable in the court-a case within the meaning of that term, as employed in the Constitution and defined by the decisions of this court. It is to be presumed in favor of the jurisdiction of the court that the plaintiff may be able to prove the right which he asserts in his declaration.

What is that right as established by the verdict of the jury in this case? It is the right to the possession of the homestead of plaintiff. A right to recover that which has been taken from him by force and violence and detained by the strong hand. This right being clearly established, we are told that the court can proceed no further, because it appears that certain mili

have seized this estate, and converted one part of it into a military fort and another into a cemetery.

Conceding that the property in controversy in this case is devoted to a proper public use, and that this has been done by those having authority to establish a cemetery and a fort, the verdict of the jury finds that it is and was the private property of the plaintiff, and was taken without any process of law and without any compensation. Undoubtedly those provisions of the Constitution are of that character which it is intended the court shall enforce, when cases involving their operation and effect are brought before them. The instances in which the life and liberty of the citizen have been protected by the judicial writ of habeas corpus are too familiar to need citation, and many of these cases, indeed almost all of them, are those in which life or liberty was invaded by persons assuming to act under the authority of the government. Ex parte Milligan, 4 Wall. 2.

If this constitutional provision is a sufficient authority for the court to interfere to rescue a prisoner from the hands of those holding him under the asserted authority of the government, what reason is there that the same courts shall not give remedy to the citizen whose property has been seized without due process of law and devoted to public use without just compensation?

Looking at the question upon principle, and apart from the authority of adjudged cases, we think it still clearer that this branch of the defense cannot be maintained. It seems to be opposed to all the principles upon which the rights of the citizen, when brought in collision with the acts of the government, must be determined. In such cases there is no safety for the citizen, except in the protection of the judicial tribunals, for rights which have been invaded by the officers of the government, professing to act in its name. There remains to him but the alternative of resistance, which may amount to crime. The position assumed here is, that however clear his rights, no remedy can

It is not pretended, as the case now stands, that the President had any lawful authority to do this, or that the legislative body could give him any such authority except upon payment of just compensation. The defence stands here solely upon the absolute immunity from judicial inquiry of every one who asserts authority from the executive branch of the government, however clear it may be made that the executive possessed no such power. Not only that no such power is given, but that it is absolutely prohibited, both to the executive and the legislative, to deprive any one of life, liberty or property without due process of law, or to take private property without just compensation.

These provisions for the security of the rights of the citizen stand in the Constitution in the same connection and upon the same ground, as they regard his liberty and his property. It cannot be denied that both were intended to be enforced by the judiciary as one of the departments of the government established by that Constitution. As we have already said, the writ of habeas corpus has been often used to defend the liberty of the citizen, and even his life, against the assertion of unlawful authority on the part of the executive and the legislative branches of the government. See Ex parte Milligan, 4 Wall. 2, and the case of Kilbourn, discharged from the custody of the Sergeant-at-Arms of the House of Representatives by Chief Justice Carter. Kilbourn v. Thompson, 103 U. S. 168.

No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it.

It is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives.

Courts of justice are established, not only to decide upon the controverted rights of the citizens as against each other, but also upon rights in controversy between them and the government, and the docket of this court is crowded with controversies of the latter class.

Shall it be said, in the face of all this, and of the acknowledged right of the judiciary to decide, in proper cases, statutes which have been passed by both branches of Congress and approved by the president to be unconstitutional, that the courts cannot give remedy when the citizen has been deprived of his property by force, his estate seized and converted to the use of the government without any lawful authority, without any process of law, and without any compensation, because the president has ordered it and his officers are in possession?

If such be the law of this country, it sanctions a tyranny which has no existence in the monarchies of Europe, nor in any other government which has a just claim to well regulated liberty and the protection of personal rights.

It cannot be then that when in a suit between two citizens for the ownership of real estate, one of them has established his right to the possession of the property according to all the forms of judicial procedure, and by the verdict of a jury and the judgment of the court, the wrongful possessor can say successfully to the court, stop here, I hold by order of the president, and the progress of justice must be stayed. That though the nature of the controversy is one peculiarly appropriate to the judicial function, though the United States is no party to the suit, though one of the three great branches of the government to which by the Constitution this duty has been assigned has declared its judgment after a fair trial, the unsuccessful party can interpose an absolute veto upon that judgment by the production of an order of the secretary of war, which that officer had no more authority to make than the humblest private citizen.

The evils supposed to grow out of the possible interference of judicial action with the exercise of powers of the government essential to some of its most important operations, will be seen to be small indeed compared to this evil, and much diminished, if they do not wholly disappear, upon a recurrence to a few considerations.

One of these, of no little significance, is that during the existence of the government for now nearly a century under the present Constitution, with this principle and the practice under it well established, no injury from it has come to that government. During this time at least two wars so serious as to call into exercise all the powers and all the resources of the government have been conducted to a successful issue. One of these was a great civil war, such as the world has seldom known, which strained the powers of the national government to their utmost tension. In the course of this war persons hostile to the Union did not hesitate to invoke the powers of the courts for their protection as citizens, in order to cripple the exercise of the authority necessary to put down the rebellion, yet no improper interference with the exercise of that authority was permitted or attempted by the courts. Mississippi v. President, 4 Wall. 475; Georgia v. Stanton, 6 id. 50; Georgia v. Grant, id. 241; Ex parte Tarble, 13 id. 397.

Another consideration is, that since the United States cannot be made a defendant to a suit concerning its property, and no judgment in any suit against an individual who has possession or control of such property can bind or conclude the government, as is decided by this court in the case of Carr v. United States, already referred to, the government is always at liberty, notwithstanding any such judgment, to avail

itself of all the remedies which the law allows to every person, natural or artificial, for the vindication and assertion of its rights. Hence, taking the present case as an illustration, the United States may proceed by a bill in chancery to quiet its title, in aid of which, if a proper case is made, a writ of injunction may be obtained. Or it may bring an action of ejectment, in which, on a direct issue between the United States as plaintiff, and the present plaintiff as defendant, the title of the United States could be judicially determined. Or if satisfied that its title has been shown to be invalid, and it still desires to use the property, or any part of it, for the purposes to which it is now devoted, it may purchase such property by fair negotiation, or condemn it by a judicial proceeding, in which a just compensation shall be ascertained and paid according to the Constitution.

If it be said that the proposition here established may subject the property, the officers of the United States, and the performance of their indispensable functions to hostile proceedings in the State courts, the answer is, that no case can arise in a State court, where the interests, the property, the rights or the authority of the Federal government may come in question, which cannot be removed into a court of the United States under existing laws. In all cases therefore where such questions can arise, they are to be decided, at the option of the parties representing the United States, in courts which are the creation of the Federal government.

The slightest consideration of the nature, the character, the organization, and the powers of these courts will dispel any fear of serious injury to the government at their hands.

While by the Constitution the judicial department is recognized as one of the three great branches among which all the powers and functions of the government are distributed, it is inherently the weakest of them all.

Dependent as its courts are for the enforcement of their judgments upon officers appointed by the executive and removable at his pleasure, with no patronage and no control of purse or sword, their power and influence rest solely upon the public sense of the necessity for the existence of a tribunal to which all may appeal for the assertion and protection of rights guaranteed by the Constitution and by the laws of the land, and on the confidence reposed in the soundness of their decisions and the purity of their motives.

From such a tribunal no well-founded fear can be entertained of injustice to the government or purpose to obstruct or diminish its just authority.

The Circuit Court was competent to decide the issues in this case between the parties that were before it; in the principles on which these issues were decided no error has been found; and its judgment is affirmed.

GRAY, J., delivered a dissenting opinion in which Waite, C. J., and Bradley and Woods, JJ., concurred. These authorities were referred to: Bennett v. Hunter, 9 Wall. 326; Cohens v. Virginia, 6 Wheat. 261; Beers v. Arkansas, 20 How. 527; Nichols v. United States, 7 Wall. 122; United States v. Clarke, 8 Pet. 436; Cary v. Curtis, 3 How. 236; United States v. McLemore, 4 id. 286; Hill v. United States, 9 id. 386; Reeside v. Walker, 11 id. 272; DeGroot v. United States, 5 Wall. 419; United States v. Eckford, 6 id. 484; The Siren, 7 id. 152; The Davis, 10 id. 15; United States v. O'Keefe, 11 id. 178; Case v. Terrell, 11 id. 199; Carr v. United States, 98 U. S. 433; United States v. Thompson, id. 486; Railroad Co. v. Tennessee, 101 id. 337; Railroad Co. v. Alabama, id. 832; Bract. 168b, 171b, 212a; 2 Coke Inst. 206; Staunf. Prerog., fol. 721; Sadler's case, 4 Rep. 541; Hale's Analysis, §9; Queen v. Powell. 1 Q. B. 352; Queen v. Commissioners of Treasury, 7 id. 387; Doe v Roe, 8 M. & W. 579; Attorney-Gen. v. Hal

lett, 15 id. 97; Cawthorne v. Campbell, 1 Austr. 205; The Exchange, 7 Cranch, 116; Vavasseur v. Krupp, 9 Ch. Div. 351; The Parliament Belge, 5 P. D. 197; Clayton v. Attorney-Gen, 1 Coop. Temp. Cottenham, 97; Canterbury v. Attorney-Gen., 1 Phillips, 306; De Boue's case, 8 Q. B. 208; Eastern Arch Co. v. Queen, 2 E. & B. 856; Tobin v. Queen, 14 C. B. N. S. 505; Irwin v. Grey, 3 F. & F. 635; Gibbons v. United States, 8 Wall. 269; United States v. Peters, 5 Cranch, 115; Osborn v. Bank of United States, 9 Wheat. 738; Gray v. Davis, 16 Wall. 203; and Board of Liquidation v. McComb, 92 U. S. 531; United States v. Nourse, 6 Pet. 470, and 9 id. 8; Murray v. Hoboken Land Co., 18 How. 272, 284; Van Ness v. Washington, 4 Pet. 232, 276, 277; Clark v. Clark, 17 How. 315, 320.

MEASURE OF DAMAGES IN ACTION FOR BREACH OF CONTRACT OF SERVICE.

TH

NEW YORK COURT OF APPEALS.

EVERSON V. POWERS.

Where one was employed at service for a definite term, at a gross sum, and entered upon the employment, but was unlawfully discharged, and before the expiration of the term brought his action of damages for breach of the contract, but the trial did not take place until after the expiration of the term, held, that the measure of damages was the difference between the contract compensation and the amount received with what he was enabled to earn during the term after discharge. THIS action was brought to recover damages for the breach of a contract of employment. The plaintiff alleges that on the first day of January, 1878, the defendants entered into an agreement with him by which it was agreed that he should work for the defendants for the term of one year from the first day of January, 1878, to the first day of January, 1879, for the sum of $1,052, per year. That said plaintiff entered upon the performance of said contract, and worked for the defendants until the 19th day of January, 1878, when the defendants discharged him from their service, and refused to carry out the contract on their part.

For a second cause of action the plaintiff sues as assignee of one Frederick Yager, and alleges that on the first of January, 1878, the defendants contracted with said Frederick Yager, whereby it was agreed that said Yager should work for said defendants for the term of one year, from the first of January, 1878, till the first of January, 1879, for the sum of $780, per year, and that said Yager, on or about said first of January, 1878, entered upon the performance of said contract, and worked for defendants until the 23d of January, 1878, when he was discharged, defendants refusing to to carry out said contract with said Yager.

The action was brought August 26, 1878, but was not tried until March, 1879. Verdict for the plaintiff for $1,731.94.

Samuel Hand, for appellants.

Jacob Fromme and S. Johns, for respondent.

TRACY, J. The only question presented upon this appeal relates to the rule of damages to be applied in an action for a breach of contract of employment where the servant has entered upon the performance of a contract, has been discharged, and brings his action before the expiration of the term, but the trial does not occur until afterward.

The case does not contain the evidence taken upon the trial, and the question is presented by an exception to the charge of the judge.

The judge charged that if the plaintiff was entitled to recover, he was entitled to the difference as between

what the contract called for for the year 1878 and the amount he actually received and what he was enabled to earn after his discharge that year, which would be $970. It appears that he used every endeavor to obtain employment after he was discharged, but with what result his testimony shows. To this charge the defendant's 'counsel excepted. A similar charge was given as to the rule of damages applicable to the case of Yerger, and a similar exception taken.

It is not questioned that had the action been brought after the expiration of the term, the rule of damages applied by the judge would have been correct, but it is insisted that inasmuch as the action was brought before the expiration of the term, a different rule applies; that a servant who would recover as damages the entire amount of compensation stipulated for in the contract must wait until the expiration of the term before bringing his action. The plaintiff's cause of action arose at the time of the breach of the contract, and he was then entitled to sue and recover such actual damages as the evidence upon the trial showed he had sustained by the defendant's breach. It is the breach, and not the time of complaining of it, which gives the damages.

Lord Mansfield laid down the doctrine-"It is agreeable to the principles of common law that whenever a duty has incurred pending the writ, for which no satisfaction can be had by a new suit, such duty shall be included in the judgment to be given on the action already pending." (Sedgwick on the Measure of Damages [1st ed.], p. 107.)

In the authority just cited the rule is stated as follows: "If the original tort or breach of contract is such that the plaintiff would be entitled to nominal damages, then he can go on and give evidence of those consequences of the act which are immediately traceable to it, although they have taken place after the commencement of the suit." The same author in the sixth edition of the work, page 122, says: "If there is a breach of contract the right to nominal damages exists at once to vindicate the right, and suit may be brought. If those consequences for which the law renders the party in default reponsible have developed themselves so as to create absolute injury before the verdict, the jury are bound to give compensation for such injury, but if at the time of trial the loss is still only probable, the verdict should be for nominal damages." See, also, Wilcox v. Executors of Plummer, 4 Pet. 172.

We think the principle above stated is applicable to this case. The defendants owed a duty to the plaintiff and Yager from the time of the commencement of the action up to January 1, 1879, all of which was during the pendency of the writ, and for which satisfaction cannot be had except in this action. Where the cause of action is commenced during the term, but the trial occurs after the expiration of the term of service, we can see no reason why the plaintiff may not be permitted to recover the same damages that he would have been entitled to recover had the action been commenced after the expiration of the term. The judgment should be affirmed with costs. All concur except Miller, J., absent.

FINANCIAL LAW.

BANK CHECK- WHEN PAYEE MAY MAINTAIN ACTION ON, AGAINST BANK.-Y. gave his check on defendants, who were bankers, to S., to whose order it was payable. S. thereafter presented the check to defendants, who declined to pay it, on the ground that they had suspended and wished to treat all alike. After this Y. and defendants had a settlement, and the defendants gave Y. a note for the amount due him after deducting the amount of the check to S. Held, that S. could