Chapter IX: Part 9

But the most important of all Dalton's investigations are those concerned with the Atomic Theory in chemistry, with which his name is inseparably associated. It has been supposed that this theory was suggested to him either by researches on olefiant gas and carburetted hydrogen or by analysis of "protoxide and deutoxide of azote," both views resting on the authority of Dr Thomas Thomson (1773-1852), professor of chemistry in Glasgow university. But from a study of Dalton's own MS. laboratory notebooks, discovered in the rooms of the Manchester society, Roscoe and Harden (_A New View of the Origin of Dalton's Atomic Theory_, 1896) conclude that so far from Dalton being led to the idea that chemical combination consists in the approximation of atoms of definite and characteristic weight by his search for an explanation of the law of combination in multiple proportions, the idea of atomic structure arose in his mind as a purely physical conception, forced upon him by study of the physical properties of the atmosphere and other gases. The first published indications of this idea are to be found at the end of his paper on the "Absorption of gases" already mentioned, which was read on the 21st of October 1803 though not published till 1805. Here he says: "Why does not water admit its bulk of every kind of gas alike? This question I have duly considered, and though I am not able to satisfy myself completely I am nearly persuaded that the circumstance depends on the weight and number of the ultimate particles of the several gases." He proceeds to give what has been quoted as his first table of atomic weights, but on p. 248 of his laboratory notebooks for 1802-1804, under the date 6th of September 1803, there is an earlier one in which he sets forth the relative weights of the ultimate atoms of a number of substances, derived from analysis of water, ammonia, carbon-dioxide, &c. by chemists of the time. It appears, then, that, confronted with the "problem of ascertaining the relative diameter of the particles of which, he was convinced, all gases were made up, he had recourse to the results of chemical analysis. Assisted by the assumption that combination always takes place in the simplest possible way, he thus arrived at the idea that chemical combination takes place between particles of different weights, and this it was which differentiated his theory from the historic speculations of the Greeks. The extension of this idea to substances in general necessarily led him to the law of combination in multiple proportions, and the comparison with experiment brilliantly confirmed the truth of his deduction" (_A New View, &c._, pp. 50, 51). It may be noted that in a paper on the "Proportion of the gases or elastic fluids constituting the atmosphere," read by him in November 1802, the law of multiple proportions appears to be anticipated in the words--"The elements of oxygen may combine with a certain portion of nitrous gas or with twice that portion, but with no intermediate quantity," but there is reason to suspect that this sentence was added some time after the reading of the paper, which was not published till 1805.

Dalton communicated his atomic theory to Dr Thomson, who by consent included an outline of it in the third edition of his _System of Chemistry_ (1807), and Dalton gave a further account of it in the first part of the first volume of his _New System of Chemical Philosophy_ (1808). The second part of this volume appeared in 1810, but the first part of the second volume was not issued till 1827, though the printing of it began in 1817. This delay is not explained by any excess of care in preparation, for much of the matter was out of date and the appendix giving the author's latest views is the only portion of special interest. The second part of vol. ii. never appeared.

Altogether Dalton contributed 116 memoirs to the Manchester Literary and Philosophical Society, of which from 1817 till his death he was the president. Of these the earlier are the most important. In one of them, read in 1814, he explains the principles of volumetric analysis, in which he was one of the earliest workers. In 1840 a paper on the phosphates and arsenates, which was clearly unworthy of him, was refused by the Royal Society, and he was so incensed that he published it himself. He took the same course soon afterwards with four other papers, two of which--"On the quantity of acids, bases and salts in different varieties of salts" and "On a new and easy method of analysing sugar," contain his discovery, regarded by him as second in importance only to the atomic theory, that certain anhydrous salts when dissolved in water cause no increase in its volume, his inference being that the "salt enters into the pores of the water."

As an investigator, Dalton was content with rough and inaccurate instruments, though better ones were readily attainable. Sir Humphry Davy described him as a "very coarse experimenter," who "almost always found the results he required, trusting to his head rather than his hands." In the preface to the second part of vol. i. of his _New System_ he says he had so often been misled by taking for granted the results of others that he "determined to write as little as possible but what I can attest by my own experience," but this independence he carried so far that it sometimes resembled lack of receptivity. Thus he distrusted, and probably never fully accepted, Gay-Lussac's conclusions as to the combining volumes of gases; he held peculiar and quite unfounded views about chlorine, even after its elementary character had been settled by Davy; he persisted in using the atomic weights he himself had adopted, even when they had been superseded by the more accurate determinations of other chemists; and he always objected to the chemical notation devised by J. J. Berzelius, although by common consent it was much simpler and more convenient than his cumbersome system of circular symbols. His library, he was once heard to declare, he could carry on his back, yet he had not read half the books it contained.

Before he had propounded the atomic theory he had already attained a considerable scientific reputation. In 1804 he was chosen to give a course of lectures on natural philosophy at the Royal Institution in London, where he delivered another course in 1809-1810. But he was deficient, it would seem, in the qualities that make an attractive lecturer, being harsh and indistinct in voice, ineffective in the treatment of his subject, and "singularly wanting in the language and power of illustration." In 1810 he was asked by Davy to offer himself as a candidate for the fellowship of the Royal Society, but declined, possibly for pecuniary reasons; but in 1822 he was proposed without his knowledge, and on election paid the usual fee. Six years previously he had been made a corresponding member of the French Academy of Sciences, and in 1830 he was elected as one of its eight foreign associates in place of Davy. In 1833 Lord Grey's government conferred on him a pension of L150, raised in 1836 to L300. Never married, though there is evidence that he delighted in the society of women of education and refinement, he lived for more than a quarter of a century with his friend the Rev. W. Johns (1771-1845), in George Street, Manchester, where his daily round of laboratory work and tuition was broken only by annual excursions to the Lake district and occasional visits to London, "a surprising place and well worth one's while to see once, but the most disagreeable place on earth for one of a contemplative turn to reside in constantly." In 1822 he paid a short visit to Paris, where he met many of the distinguished men of science then living in the French capital, and he attended several of the earlier meetings of the British Association at York, Oxford, Dublin and Bristol. Into society he rarely went, and his only amusement was a game of bowls on Thursday afternoons. He died in Manchester in 1844 of paralysis. The first attack he suffered in 1837, and a second in 1838 left him much enfeebled, both physically and mentally, though he remained able to make experiments. In May 1844 he had another stroke; on the 26th of July he recorded with trembling hand his last meteorological observation, and on the 27th he fell from his bed and was found lifeless by his attendant. A bust of him, by Chantrey, was publicly subscribed for in 1833 and placed in the entrance hall of the Manchester Royal Institution.

See Henry, _Life of Dalton_, Cavendish Society (1854); Angus Smith,
_Memoir of John Dalton and History of the Atomic Theory_ (1856), which
on pp. 253-263 gives a list of Dalton's publications; and Roscoe and
Harden, _A New View of the Origin of Dalton's Atomic Theory_ (1896);
also Atom.

DALTON, a city and the county-seat of Whitfield county, Georgia, U.S.A., in the N.W. part of the state, 100 m. N.N.W. of Atlanta. Pop. (1890) 3046; (1900) 4315 (957 negroes); (1910) 5324. Dalton is served by the Southern, the Nashville, Chattanooga & St Louis, and the Western & Atlanta (operated by the Nashville, Chattanooga & St Louis) railways. The city is in a rich agricultural region; ships cotton, grain, fruit and ore; and has various manufactures, including canned fruit and vegetables, flour and foundry and machine shop products. It is the seat of Dalton Female College. Dalton was founded by Duff Green and others in 1848, and was incorporated in 1874. Hither General Braxton Bragg retreated after his defeat at Chattanooga in the last week of November 1863. Three weeks afterwards Bragg, in command of the army in northern Georgia in winter quarters here, was replaced by General Joseph E. Johnston, who, with his force of 54,400, adopted defensive tactics to meet Sherman's invasion of Georgia, with his 99,000 or 100,000 men in the Army of the Cumberland (60,000) under General G. H. Thomas, the Army of the Tennessee (25,000) under General J. B. M'Pherson, and the Army of the Ohio (14,000) under General J. M. Schofield. The Federal forces stretched for 20 m. in a position south of Ringgold and between Ringgold and Dalton. Johnston's line of defences included Rocky Face Ridge, a wall of rock through which the railway passes about 5 m. north-west of the city, Mill Creek (1 m. north-north-west of Dalton), which he dammed so that it could not be forded, and earthworks north and east of the city. On the 7th of May General M'Pherson started for Resaca, 18 m. south of Dalton, to occupy the railway there in Johnston's rear, but he did not attack Resaca, thinking it too strongly protected; Thomas, with Schofield on his left, on the 7th forced the Confederates through Buzzard's Roost Gap (the pass at Mill Creek) north-west of Dalton; at Dug Gap, 4 m. south-west of Dalton, on the 8th a fierce Federal assault under Brigadier-General John W. Geary failed to dislodge the Confederates from a quite impregnable position. On the 11th the main body of Sherman's army followed M'Pherson toward Resaca, and Johnston, having evacuated Dalton on the night of the 12th, was thus forced, after five days' manoeuvring and skirmishing, to march to Resaca and to meet Sherman there.

See J. D. Cox, _The Atlanta Campaign_ (New York, 1882); Johnson and
Buel, _Battles and Leaders of the Civil War_ (4 vols., New York,
1887); and _Official Records of the War of the Rebellion_, series 1,
vols. 32, 38, 39, 45, 49; series ii., vol. 8.

DALTON-IN-FURNESS, a market town in the North Lonsdale parliamentary division of Lancashire, England, 4 m. N.E. by N. of Barrow-in-Furness by the Furness railway. Pop. of urban district (1901) 13,020. The church of St Mary is in the main a modern reconstruction, but retains ancient fragments and a font believed to have belonged to Furness Abbey. This fine ruin lies 3 m. south of Dalton (see FURNESS). St Mary's churchyard contains the tomb of the painter George Romney, a native of the town. Of Dalton Castle there remains a square tower, showing decorated windows. Here was held the manorial court of Furness Abbey. There are numerous iron-ore mines in the parish, and ironworks at Askam-in-Furness, in the northern part of the district.

DALY, AUGUSTIN (1838-1899), American theatrical manager and playwright, was born in Plymouth, North Carolina, on the 20th of July 1838. He was dramatic critic for several New York papers from 1859, and he adapted or wrote a number of plays, _Under the Gaslight_ (1867) being his first success. In 1869 he was the manager of the Fifth Avenue theatre, and in 1879 he built and opened Daly's theatre in New York, and, in 1893, Daly's theatre in London. At the former he gathered a company of players, headed by Miss Ada Rehan, which made for it a high reputation, and for them he adapted plays from foreign sources, and revived Shakespearean comedies in a manner before unknown in America. He took his entire company on tour, visiting England, Germany and France, and some of the best actors on the American stage have owed their training and first successes to him. Among these were Clara Morris, Sara Jewett, John Drew, Fanny Davenport, Maude Adams, Mrs Gilbert and many others. Daly was a great book-lover, and his valuable library was dispersed by auction after his death, which occurred in Paris on the 7th of June 1899. Besides plays, original and adapted, he wrote _Woffington: a Tribute to the Actress and the Woman_ (1888).

DALYELL (or DALZIELL or DALZELL), THOMAS (d. 1685), British soldier, was the son of Thomas Dalyell of Binns, Linlithgowshire, a cadet of the family of the earls of Carnwath, and of Janet, daughter of the 1st Lord Bruce of Kinloss, master of the rolls in England. He appears to have accompanied the Rochelle expedition in 1628, and afterwards, becoming colonel, served under Robert Munro, the general in Ireland. He was taken prisoner at the capitulation of Carrickfergus in August 1650, but was given a free pass, and having been banished from Scotland remained in Ireland. He was present at the battle of Worcester (3rd of September 1651), where his men surrendered, and he himself was captured and imprisoned in the Tower. In May he escaped abroad, and in 1654 took part in the Highland rebellion and was excepted from Cromwell's act of grace, a reward of L200 being offered for his capture, dead or alive. The king's cause being now for the time hopeless, Dalyell entered the service of the tsar of Russia, and distinguished himself as general in the wars against the Turks and Tatars. He returned to Charles in 1665, and on the 19th of July 1666 he was appointed commander-in-chief in Scotland to subdue the Covenanters. He defeated them at Rullion Green and exercised his powers with great cruelty, his name becoming a terror to the peasants. He obtained several of the forfeited estates. On the 3rd of January 1667 he was made a privy councillor, and from 1678 till his death represented Linlithgow in the Scottish parliament. He was incensed by the choice of the duke of Monmouth as commander-in-chief in June 1679, and was confirmed in his original appointment by Charles, but in consequence did not appear at Bothwell Bridge till after the close of the engagement. On the 25th of November 1681, a commission was issued authorizing him to enrol the regiment afterwards known as the Scots Greys. He was continued in his appointment by James II., but died soon after the latter's accession in August 1685. He married Agnes, daughter of John Ker of Cavers, by whom he had a son, Thomas, created a baronet in 1685, whose only son and heir, Thomas, died unmarried. The baronetage apparently became extinct, but it was assumed about 1726 by James Menteith, a son of the sister of the last baronet, who took the name of Dalyell; his last male descendant, Sir Robert Dalyell, died unmarried in 1886.

DAM. (1) (A common Teutonic word, cf. Swed. and Ger. _damm_, and the Gothic verb _faurdammjan_, to block up), a barrier of earth or masonry erected to restrain, divert or contain a body of water, particularly in order to form a reservoir. (2) (Fr. _dame_, dame; Lat. _domina_, feminine of _dominus_, lord, master), the mother of an animal, now chiefly used of the larger quadrupeds, and particularly of a mare, the mother of a foal.

DAMAGES (through O. Fr. _damage_, mod. Fr. _dommage_, from Lat. _damnum_, loss), the compensation which a person who has suffered a legal wrong is by law entitled to recover from the person responsible for the wrong. Loss caused by an act which is not a legal wrong (_damnum sine injuria_) is not recoverable, e.g. where a father loses a young child by the negligence of a third party.

The principle of compensation in law makes its first appearance as a substitute for personal retaliation. In primitive law something of the nature of the Anglo-Saxon _wer-gild_, or the [Greek: poine] of the _Iliad_, appears to be universal. It marks out with great minuteness the measure of the compensation appropriate to each particular case of personal injury. And there is a resemblance between the legal compensation, as it may be called, and the compensation which an injured person, seeking his own remedy, would be likely to exact for himself. In such a system the two entirely different objects of personal satisfaction and criminal punishment are not clearly separated, and in fact, criminal and civil remedies were administered in the same proceeding.

Under modern systems of law, the object of legal compensation is to place the injured person as nearly as possible in the situation in which he would have been but for the injury; and the controlling principle is that compensation should be determined so far as possible by the actual amount of the loss sustained. In England, civil proceedings for reparation and criminal proceedings for punishment are with few exceptions carefully kept separate. In Scotland, pursuit of the two kinds of remedies in the same proceeding is possible but very rare; but in France and other European states it is lawful and usual in the case of those delicts which are also punishable criminally.

In the law of England the two historical systems of common law and equity viewed compensation or reparation from two different points of view. The principle of the common law was that the amount of every injury might be estimated by pecuniary valuation. The idea was no doubt derived from the old tariffs of _were_, _bot_ and _wite_, in which the valuations were elaborate. Until 1858 (Cairns' Act) courts of equity had no direct jurisdiction to award damages, and their business was to place the injured party in the actual position to which he was entitled (_restitutio ad integrum_). This difference comes out most clearly in cases of breach of contract. The common law, with a few partial exceptions, could do no more than compel the defaulter to make good the loss of the other party, by paying him an ascertained sum of money as damages. Equity, recognizing the fact that complete satisfaction was not in all cases to be obtained by mere money payment, compelled those who broke certain classes of contracts specifically to perform them, and in the case of acts or defaults not amounting to breach of contract, on satisfactory proof that a wrong was contemplated, would interfere to prevent it by injunction; while at common law no action could be brought until the injury was accomplished, and then only pecuniary damages could be obtained. Since the Judicature Acts this distinction has ceased and the appropriate remedy may be awarded in any division of the High Court of Justice.

Under the common law damages were always assessed by a jury. Under the existing procedure in England they may be assessed (1) by a jury under the directions of a judge; (2) by a judge alone or sitting with assessors; (3) by a referee, official or special, or officer of the courts with or without the assistance of mercantile or other assessors; (4) by a consensual tribunal such as an arbitrator or valuer selected by the parties. Whatever the mode of assessment, it is subject to review if the assessors have clearly mistaken the proper measure of damage.

In the case of assessment by a jury, the verdict may be set aside because the damages are clearly excessive or palpably insufficient, or arrived at by some irregular conduct, e.g. by setting down the sum which each juryman would give and dividing the result by twelve. The appellate court, however, cannot, without the consent of the parties, itself fix the amount of damages in a case which has been submitted to a jury (_Watt_ v. _Watt_, 1905, Appeal Cases 115).

Measure of damages.

The courts have gradually evolved certain rules or principles for the proper assessment of damages, although extreme difficulty is found in their application to concrete cases. A distinction is drawn between _general_ and _special_ damages. (1) General damage is that _implied by law_ as necessarily flowing from the breach of right, and requiring no proof. (2) Special damage is that _in fact_ caused by the wrong. Under existing practice this form of damage cannot be recovered unless it has been specifically claimed and proved, or unless the best available particulars or details have been before trial communicated to the party against whom it is claimed.

_Contracts._--"The law imposes or implies a term that upon breach of contract damages must be paid." The general tendency of legal decisions in cases of contract is (i.) to make the amount of damages which may be awarded a matter of legal certainty, (ii.) to leave to a jury or like tribunal little more to do than find the facts, (iii.) and to revise the assessment if it is clear that it has been made in disregard of the terms of the contract or of the natural and direct consequences of the breach. The measure of damage, general speaking, is the sum necessary to place the aggrieved party in the same position so far as money will do it as if the contract had been performed. If the breach is proved, but the person complaining has suffered no real damage, he is entitled to have his legal right recognized by an award of what are called _nominal damages_, i.e. a sum just sufficient to carry a judgment in his favour on the infraction of his rights. Nominal damages, it will therefore be seen, are not the same as "small damages." He is, however, also entitled to prove and recover the special or particular damage lawfully attributable to the breach. Where the contract is to pay a fixed sum of money or liquidated amount, the measure of damages for non-payment is the sum agreed to be paid and interest thereon at the rate stipulated in the contract or recognized by law.

The law is the same in Scotland and in France (Civil Code, art. 1153). In some contracts the parties themselves fix the sum to be paid as damages if the contract is not fulfilled. These damages are described as _liquidated_, in Scots law _stipulated_ or _estimated_. It would be supposed that the sum thus fixed would be the proper damages to be awarded. And under the French Civil Code (arts. 1152, 1153, 1780) the stipulation of the parties as to the damages to be paid for breach of a stipulation other than for paying a sum of money is binding on the courts. But in England, Scotland and the United States, courts disregard the words used, and inquire into the real nature of the transaction in order to see whether the sum fixed is to be treated as ascertained damage or as a penalty to be held _in terrorem_ over the defaulter, and in the latter case, notwithstanding the stipulation, will require proof of the actual loss. In _Kemble_ v. _Farren_ (1829, 6 Bingham, 141), a contract between a manager and an actor provided that for a breach of any of the stipulations therein, the sum of L1000 should be payable by the defaulter, not as a penalty, but as liquidated and ascertained damages. Yet, the court, observing that under the stipulations of the contract the sum of L1000, if it were taken to be liquidated damages, might become payable for mere non-payment of a trifling sum, held that it was not fixed as damages, but as a penalty only. The case in which an agreed sum is most usually treated as a penalty is a bond to pay a fixed sum containing a condition that it shall be void if certain acts are done or a certain smaller sum paid. Another case is where a single lump sum is fixed as the liquidated amount of damage to be paid for doing or failing to do a number of different things of very varying degrees of importance (_Elphinstone_ v. _Monkland Iron Co._, 1887, 11 A.C. 333). But the courts have accepted as creating a contractual measure of damage a stipulation to finish sewerage works by a given day (_Law_ v. _Redditch Local Board_, 1892, 1 Q.B. 127); or to complete torpedo boats within a limited time for a foreign government (_Clydebank Engineering Co._ v. _Yzquierda_, 1905, A.C. 6). In this last case the law lords indicated that the provision of an agreed sum was peculiarly appropriate in view of the difficulty of showing the exact damage which a state sustains by non-delivery of a warship. Where the damage is not liquidated or agreed it is assessed to upon evidence as to the actual loss naturally and directly flowing from the breach of contract.

In contracts for the sale of goods the measure of damages is fixed by statute. Where the buyer wrongfully refuses or neglects to accept and pay for, or the seller wrongfully neglects or refuses to deliver the goods, the measure is the estimated loss directly and naturally resulting in the ordinary course of events from the buyer's or seller's breach of contract. Where there is an available market for the goods in question, the measure of damages is prima facie to be ascertained by the difference between the contract price and the market or current price at the time or times when the goods ought to have been accepted or delivered, or if no such time was fixed for acceptance or delivery, then at the time of refusal to accept or deliver (Sale of Goods Act 1893, SS 50, 51).

Where there is no market, the value is fixed by the price of the nearest available substitute. Where the sufferer, at the request of the person in default, postpones purchase or sale, any increased loss thereby caused falls on the defaulter. If the buyer, before the time fixed for delivery, has resold the goods to a sub-vendor, he cannot claim against his own vendor any damages which the sub-vendor may recover against him for breach of contract, because he ought to have gone into the market and purchased other goods. But this is subject to modification in cases falling within the rule in _Hadley_ v. _Baxendale_ (1854, 9 Exchequer, 341). But trouble and expense incurred by the seller of finding a new purchaser or other goods may be taken account of in assessing the damages.

Where the goods delivered are not as contracted the buyer may as a rule sue the seller for a breach of warranty, or set it up as reduction of price. Where the warranty is of quality the loss is prima facie the difference between the value of the goods delivered when delivered and the value which they would have then had if they had answered to the warranty (Sale of Goods Act 1893, S 53). In an American case, where a person had agreed with a boarding-house keeper for a year, and quitted the house within the time, it was held that the measure of damages was not the price stipulated to be paid, but only the loss caused by the breach of contract. In contracts to marry, a special class of considerations is recognized, and the jury in assessing damages will take notice of the conduct of the parties. The social position and means of the defendant may be given in evidence to show what the plaintiff has lost by the breach of contract.

On a breach of contract to replace stock lent, the measure of damages is the price of the stock on the day when it ought to have been delivered, or on the day of trial, at the plaintiff's option.

In contracts for the sale of realty, the measure of damage for breach by the vendor is the amount of any deposit paid by the would-be purchaser and of the expenses thrown away. But the purchaser may, in a proper case, obtain specific performance, and if he has been cheated may obtain damages in an action for deceit.

Breaches of trust are in a sense distinct from breaches of contract, as they fell under the jurisdiction of courts of equity and not of the common law courts. The rule applied was to require a defaulting trustee to make good to the beneficiaries any loss flowing from a breach of trust and not to allow him to set off against this liability any gain to the trust fund resulting from a different breach of trust or from good management (Lewin on _Trusts_, ed. 1904, 1146).

In estimating the proper amount to be assessed as damages for a breach of contract, it is not permissible to include every loss caused by the act or default upon which the claim for damages is based. The damage to be awarded must be that fairly and naturally arising from the breach under ordinary circumstances or the special circumstances of the particular contract, or in other words, which may reasonably be supposed to have been in the contemplation of the parties at the time of making the contract. The chief authority for this rule is the case of _Hadley_ v. _Baxendale_ (1854, 9 Exch. 341), which has been accepted in Scotland and the United States and throughout the British empire, and often differs little, if at all, from the rule adopted in the French civil code (art. 1150). In that case damages were sought for the loss of profits caused by a steam mill being kept idle, on account of the delay of the defendants in sending a new shaft which they had contracted to make. The court held the damage to be too remote, and stated the proper rule as follows:--

"Where two parties have made a contract which one of them has broken,
the damages which the other party ought to receive in respect of such
breach of contract should be such as may fairly and reasonably be
considered either arising naturally, i.e. according to the usual
course of things, from such breach of contract itself, or such as may
reasonably be supposed to have been in the contemplation of both
parties at the time they made the contract as the probable result of
the breach of it. Now if the special circumstances under which the
contract was actually made were communicated by the plaintiffs to the
defendants, and thus known to both parties, the damages resulting from
such contract which they would reasonably contemplate would be the
amount of injury which would ordinarily flow from a breach of contract
under these special circumstances so known and communicated. But on
the other hand, if those special circumstances were wholly unknown to
the party breaking the contract, he at the most could only be supposed
to have had in his mind the amount of injury which would arise
generally, and in the great multitude of cases not affected by any
special circumstances, from such breach of contract."[1]

The rule is, however, only a general guide, and does not obviate the necessity of inquiring in each case what are the natural or contemplated damages. In an action by the proprietor of a theatre, it was alleged that the defendant had written a libel on one of the plaintiff's singers, whereby she was deterred from appearing on the stage, and the plaintiff lost his profits; such loss was held to be too remote to be the ground of an action for damages. In _Smeed_ v. _Foord_ (1 Ellis and Ellis, 602), the defendant contracted to deliver a threshing-machine to the plaintiff, a farmer, knowing that it was needed to thresh the wheat in the field. Damages were sought for injury done to the wheat by rain in consequence of the machine not having been delivered in time, and also for a fall in the market before the grain could be got ready. It was held that the first claim was good, as the injury might have been anticipated, but that the second was bad. When, through the negligence of a railway company in delivering bales of cotton, the plaintiffs, having no cotton to work with, were obliged to keep their workmen unemployed, it was held that the wages paid and the profits lost were too remote for damages. On the other hand, where the defendant failed to keep funds on hand to meet the drafts of the plaintiff, so that a draft was returned dishonoured, and his business in consequence was for a time suspended and injured, the plaintiff was held entitled to recover damage for such loss.

The rule that the contract furnishes the measure of the damages does not prevail in the case of unconscionable, i.e. unreasonable, absurd or impossible contracts. The old school-book juggle in geometrical progression has more than once been before the courts as the ground of an action. Thus, when a man agreed to pay for a horse a barley-corn per nail, doubling it every nail, and the amount calculated as 32 nails was 500 quarters of barley, the judge directed the jury to disregard the contract, and give as damages the value of the horse. And when a defendant had agreed for L5 to give the plaintiff two grains of rye on Monday, four on the next Monday,[2] and so on doubling it every Monday, it was contended that the contract was impossible, as all the rye in the world would not suffice for it; but one of the judges said that, though foolish, it would hold in law, and the defendant ought to pay something for his folly. And when a man had promised L1000 to the plaintiff if he should find his owl, the jury were directed to mitigate the damages.

Interest is recoverable as damages at common law only upon mercantile securities, such as bills of exchange and promissory notes or where a promise to pay interest has been made in express terms or may be implied from the usage of trade or other circumstances [Mayne, _Damages_ (7th ed.) 166]. Under the Civil Procedure Act 1833, the jury is allowed to give interest by way of damages on debts or sums payable at a certain time, or if not so payable, from the date of demand in writing, and in actions on policies of insurance, and in actions of tort arising out of conversion or seizure of goods.

In the United States, interest is in the discretion of the court, and is made to depend on the equity of the case. In both England and America compound interest, or interest on interest, appears to have been regarded with the horror that formerly attached to usury. Lord Eldon would not recognize as valid an agreement to pay compound interest. And Chancellor Kent held that compound interest could not be taken except upon a special agreement made after the simple interest became due.

In Scotland compound interest is not allowed by way of damages.

_Torts._--In actions arising otherwise than from breach of contract (i.e. of tort, delict or quasi-delict), the principles applied to the assessment of damage in cases arising _ex contractu_ are generally applicable (_The Notting Hill_, 1884, 9 P.D. 105); but from the nature of the case less precision in assessment is attainable. The remoteness of the damage claimed is a ground for excluding it from the assessment. In some actions of tort the damages can be calculated with exactness just as in cases of contract, e.g. in most cases of interference with rights of property or injury to property. Thus, for wrongful dispossession from a plantation (in Samoa) it was held that the measure of damage was the annual value of the produce of the lands when wrongfully seized, less the cost of management, and that the wilful character of the seizure did not justify the infliction of a penalty over and above the loss to the plaintiff (_McArthur_ v. _Cornwall_, 1892, A.C. 75). Where minerals are wrongfully severed and carried away, the damage is assessed by calculating the value of the mineral as a chattel and deducting the reasonable expense of getting it. But where the interference with property, whether real or personal, is attended by circumstances of aggravation such as crime or fraud or wanton insult, it is well established that additional damages may be awarded which in effect are penal or vindictive. In actions for injuries to the person or to reputation, it is difficult to make the damages a matter for exact calculation, and it has been found impossible or inexpedient by the courts to prevent juries from awarding amounts which operate as a punishment of the delinquent rather than as a true assessment of the reparation due to the sufferer. And while a bad motive (malice) is seldom enough to give a cause of action, proof of its existence is a potent inducement to a jury to swell the assessment of damages, as evidence of bad character may induce them to reduce the damages to a derisory amount. In the case of injuries to the person caused by negligence, the tribunal considers, as part of the general damage, the actual pain and suffering, including nervous shock (but not wounded feelings) and the permanent or temporary character of the injury, and as special damage the loss of time and employment during recovery and the cost of cure. It is difficult by any arithmetical calculation to value pain and suffering; nor is it easy to value the effect of a permanent injury; and in the Workmen's Compensation Act and Employers' Liability Act, an attempt has been made in the case of workmen to assess by reference to the earnings of the injured person.

In the case of such wrongs as assault, arrest or prosecution, the motives of the defendant naturally affect the amount of general damage awarded, even when not essential elements in the case, and the damages are "at large." Any other rule would enable a man to distribute blows as he can utter curses at a statutory tariff of so much a curse, according to his rank. This position was strongly asserted in the cases arising out of the celebrated "General Warrants" (1763) in the time of Lord Camden, who is reported in one case to have said, "damages are designed not only as a satisfaction to the injured person, but as a punishment to the guilty, and as a proof of the detestation in which the wrongful act is held by the jury." In another case he mentioned the importance of the question at issue, the attempt to exercise arbitrary power, as a reason why the jury might give exemplary damages. Another judge, in another case, said "I remember a case when the jury gave L500 damages for knocking a man's hat off; and the court refused a new trial." And he urged that exemplary damages for personal insult would tend to prevent the practice of duelling.

The right to give exemplary or punitive or (as they are sometimes called) vindictive damages is fully recognized both in England and in the United States, and especially in the following cases. (1) Against the co-respondent in a divorce suit. This right is the same as that recognized at common law in the abolished action of criminal conversation, but the damages awarded may by the court be applied for the maintenance and education of the children of the marriage or the maintenance of the offending wife. (2) In actions of trespass to land where the conduct of the defendant has been outrageous. (3) In actions of defamation spoken or written, attended by circumstances of aggravation, and the analogous action of malicious prosecution. (4) In the anomalous actions of seduction and breach of promise of marriage.

In actions for wrongs, as in those _ex contractu_, the damages may be general or special. In a few cases of tort, the action fails wholly if special damage is not proved, e.g. slander by imputing to a man vicious, unchaste or immoral conduct, slander of title to land or goods or nuisance.

In theory, English law does not recognize "moral or intellectual" damage, such as was claimed by the South African Republic after the Jameson Raid. The law of Scotland allows a solatium for wounded feelings, as does French law under the name of _dommage moral, eprouve par la partie lesee dans sa liberte, sa surete, son honneur, sa consideration, ses affections legitimes ou dans la jouissance de son patrimoine_. Under this head compensation is awarded to widow, child or sister, for the loss of husband, parent or brother, in addition to the actual pecuniary loss (Dalloz, _Nouveau Code civil_, art. 1382). Claims of damage for negligence are defeated by proof of what is known as contributory negligence (_faute commune_). In other claims of tort, as already stated, the conduct of the claimant may materially reduce the amount of his damages.

In cases of damages to ships or cargo by collision at sea, the rule of the old court of admiralty (derived from the civil law and preserved by the Judicature Acts) is that when both or all vessels are to blame, the whole amount of the loss is divided between them. The rule appears not to apply to cases where death or personal injury results from the collision ("Vera Cruz," 1884, 14 A.C. 59. "Bernina," 1888, 13 A.C. 1).

_Costs._--The costs of a legal proceeding are no longer treated as damages to be assessed by the jury, nor do they depend on any act of the jury. The right to receive them depends on the court, and they are taxed or assessed by its officers (see COSTS). In a few cases where costs cannot be given, e.g. on compulsory acquisition of land in London, the assessing tribunal is invited to add to the compensation price the owner's expense in the compensation proceedings.

_Death._--In English law a right to recover damages for a tort as a general rule was lost on the death of the sufferer or of the delinquent. The cause of action was considered not to survive. This rule differs from that of Scots law (under which the claim for damages arises at the moment of injury and is not affected by the death of either party). The English rule has been criticized as barbarous, and has been considerably broken in upon by legislation, in cases of taking the goods of another (4 Edw. III., c. 7, 1330), and injuries to real or personal property (3 & 4 Will. IV., c. 42, 1833), but continues in force as to such matters as defamation, malicious prosecution and trespass to the person. By the Fatal Accidents Act 1846 (commonly called Lord Campbell's Act), it is enacted that wherever a wrongful act would have entitled the injured person to recover damages (if death had not ensued), the person who in such case would have been liable "shall be liable to an action for damages for the pecuniary loss which the death has caused to certain persons, and although the death shall have been caused under such circumstances as amount in law to felony." The only persons by whom or for whose benefit such an action may be brought are the husband, wife, parent and child (including grandchild and stepchild, but not illegitimate child) of the deceased. The right of action and the measure of damages are statutory and distinct from the right which the deceased had till he died. It was held in _Osborne_ v. _Gillett_, 1873, L.R. 8 Ex. 88, and has since been approved (_Clark_ v. _London General Omnibus Co._, 1906, 2 K.B. 648), that no person can recover damages for the death of another wrongfully killed by the act of a third person, unless he claims through or represents the person killed, and unless that person in case of an injury short of death would have had a good claim to recover damages.

In Scotland the law of compensation for breach of contract is
substantially the same as in England. In cases of delict or
quasi-delict, the measure of reparation is a fair and reasonable
compensation for the advantage which the sufferer would, but for the
wrong, have enjoyed and has lost as a natural and proximate result of
the wrong, coupled with a solatium for wounded feelings. The claim for
reparation vests as a debt when it arises and survives to the
representatives of the sufferer, and against the representatives of
the delinquent. In other words, the maxim _actio personalis moritur
cum persona_ does not apply in Scots law; and even in cases of murder
there has always been recognized a right to "assythement."

See also Mayne on _Damages_, 7th ed.; Sedgwick on _Damage_; Bell,
_Principles of Law of Scotland_. (W. F. C.)

FOOTNOTES:

[1] In the Indian Contracts Code (Act xii. of 1872), the rule is thus
summarized:--

"When a contract has been broken, the party who suffers by such
breach is entitled to receive from the party who has broken the
contract, compensation for any loss or damage caused to him thereby,
which naturally arose in the usual course of things from such breach,
or which the parties knew when they made the contract to be likely to
result from the breach of it. Such compensation is not to be given
for any remote or indirect loss or damage sustained by reason of the
breach.... In estimating the loss or damage arising from a breach of
contract, the means of remedying the inconvenience caused by the
non-performance must be taken into account" (S 73).

[2] _Quolibet alio die lunae_, which was translated by some _every
Monday_, and by others _every other Monday_. The amount in the latter
case would have been 125 quarters, in the former 524,288,000
quarters.

DAMANHUR, a town of Lower Egypt, 38 m. E.S.E. of Alexandria by rail, capital of the richly-cultivated province of Behera. It is the ancient Timenhor, "town of Horus," which in Ptolemaic times was capital of a nome and lay on the Canopic branch of the Nile. Its name and other circumstances imply that Horus (= Apollo) was worshipped there in the same form as at Edfu (Brugsch, _Dictionnaire geographique_, p. 521), but its Greek name, Hermopolis Parva, should indicate Thoth as the local god. This apparent contradiction is perhaps due to some early misunderstanding that held its ground after the Greeks knew Egypt better. A much frequented fair is held at Damanhur three times a year, and there are several cotton manufactories. Population (1907) 38,752.

DAMARALAND, a region of south-western Africa, bounded W. by the Atlantic, E. by the Kalahari, N. by Ovampoland, and S. by Great Namaqualand. It forms the central portion of German South-West Africa. Damaraland is alternatively known as Hereroland, both names being derived from the tribes inhabiting the region. The so-called Damara consist of two probably distinct peoples. They are known respectively as "the Hill Damara" and "the Cattle Damara," i.e. those who breed cattle in the plains. The Hill Damara are Negroes with much Hottentot blood, and have adopted the Hottentot tongue, while the Cattle Damara are of distinct Bantu-Negro descent and speak a Bantu language. The term Damara ("Two Dama Women") is of Hottentot origin, and is not used by the people, who call themselves Ova-herero, "the Merry People" (see HOTTENTOTS and HERERO).

DAMASCENING, or DAMASKEENING, a term sometimes applied to the production of damask steel, but properly the art of in-crusting wire of gold (and sometimes of silver or copper) on the surface of iron, steel or bronze. The surface upon which the pattern is to be traced is finely undercut with a sharp instrument, and the gold thread by hammering is forced into and securely held by the minute furrows of the cut surface. This system of ornamentation is peculiarly Oriental, having been much practised by the early goldsmiths of Damascus, and it is still eminently characteristic of Persian metal work.

DAMASCIUS, the last of the Neoplatonists, was born in Damascus about A.D. 480. In his early youth he went to Alexandria, where he spent twelve years partly as a pupil of Theon, a rhetorician, and partly as a professor of rhetoric. He then turned to philosophy and science, and studied under Hermeias and his sons, Ammonius and Heliodorus. Later on in life he migrated to Athens and continued his studies under Marinus, the mathematician, Zenodotus, and Isidore, the dialectician. He became a close friend of Isidore, succeeded him as head of the school in Athens, and wrote his biography, part of which is preserved in the _Bibliotheca_ of Photius (see appendix to the Didot edition of Diogenes Laertius). In 529 Justinian closed the school, and Damascius with six of his colleagues sought an asylum, probably in 532, at the court of Chosroes I., king of Persia. They found the conditions intolerable, and in 533, in a treaty between Justinian and Chosroes, it was provided that they should be allowed to return. It is believed that Damascius settled in Alexandria and there devoted himself to the writing of his works. The date of his death is not known.

His chief treatise is entitled _Difficulties and Solutions of First Principles_ ([Greek: 'Aporiai kai chuseis peri ton proton apxon]). It examines into the nature and attributes of God and the human soul. This examination is, in two respects, in striking contrast to that of certain other Neoplatonist writers. It is conspicuously free from that Oriental mysticism which stultifies so much of the later pagan philosophy of Europe. Secondly, it contains no polemic against Christianity, to the doctrines of which, in fact, there is no allusion. Hence the charge of impiety which Photius brings against him. His main result is that God is infinite, and as such, incomprehensible; that his attributes of goodness, knowledge and power are credited to him only by inference from their effects; that this inference is logically valid and sufficient for human thought. He insists throughout on the unity and the indivisibility of God, whereas Plotinus and Porphyry had admitted not only a Trinity, but even an Ennead (nine-fold personality).

Interesting as Damascius is in himself, he is still more interesting as the last in the long succession of Greek philosophers. (See NEOPLATONISM.)

BIBLIOGRAPHY.--The [Greek: Aporiai] was partly edited by J. Kopp
(1826), and in full by C. E. Ruelle (Paris, 1889). French trans. by
Chaignet (1898). See T. Whittaker, _The Neo-platonists_ (Cambridge,
1901); E. Zeller, _History of Greek Philosophy_; C. E. Ruelle, _Le
Philosophe Damascius_ (1861); Ch. Leveque, "Damascius" (_Journal des
savants_, February 1891). See also works quoted under NEOPLATONISM and
ALEXANDRIAN SCHOOL.

DAMASCUS, the chief town of Syria, and the capital of a government province of the same name, 57 m. from Beirut, situated in 33 deg. 30' N., and 36 deg. 18' E.

_History._--The origin of the city is unknown, and the popular belief that it is the oldest city in the world still inhabited has much to recommend it. It has been suggested that the ideogram by which it is indicated in Babylonian monuments literally means "fortress of the Amorites"; could this be proved it would be valuable testimony to its antiquity if not its origin. The city is mentioned in the document that describes the battle of the four kings against five, inserted in the book of Genesis (ch. xiv.): Abram (Abraham) is reported to have pursued the routed kings to Hobah _north of Damascus_ (v. 15). The name of the steward of Abram's establishment is given in Genesis xv. 2, as _Dammesek Eliezer_, which is explained in the Aramaic and Syriac versions as "Eliezer of Damascus." This reading is adopted by the authorized version, but the Hebrew, as it stands, will not support it. There is probably here some textual corruption.

In the period of the Egyptian suzerainty over Palestine in the eighteenth dynasty Damascus (whose name frequently appears in the Tell el-Amarna tablets) was capital of the small province of Ubi. The name of the city in the Tell el-Amarna correspondence is Dimashka. Towards the end of that period the overrunning of Palestine and Syria by the Khabiri and Suti, the forerunners of the Aramaean immigration, changed the conditions, language and government of the country. One of the first indications of this change that has been traced is the appearance of the Aramaean Darmesek for Damascus in an inscription of Rameses III.