dissenting'. Not being able to view this case in the same light as my brethren, I have deemed it of sufficient importance, both in principle and in amount, to justify me in stating some of the grounds of my own views.
As to the first point I shall spend but little time. I confine myself to the second count in the declaration, supposing, that, if either count is good, it must be that.
1. I think that count is too uncertain to be good, even upon general demurrer. It seems to be admitted on all hands, that it is not very easy to determine whether the count is in trespass on the case, or assumpsit. That may not be very important to the merits of the action, but, in a technical point of view, it would seem desirable to be able to determine which it is.
2. It is stated that the deed was one of warranty; but, among the almost infinite variety of that class of deeds, it is left wholly to conjecture to what particular species this deed belonged. It might, consistently enough with the allegation, contain covenants of general, or of special warranty, — that is, either against the title of the grantor, or that of certain other persons named; or against all persons ; — and in either case the covenants might be of seizin, or against incumbrances, or against the title of all persons, — one, two, or all three.
*2833. The undertaking of the defendant, to get the deed recorded, is not alledged to be upon any consideration, unless we are to infer one from the fact, that he received the deed of the plaintiff; and this is in no sense by the pleader relied upon as a consideration. That a consideration is necessary, in order to make a mere refusal to execute the trust a ground of action, is now, I apprehend, well settled, notwithstanding the contrary is asserted in Jones on Bailments. Elsee v. Gatward, 5 T. R. 143, Thorne v. Deas, 4 Johns. 84. In this latter case the whole law bearing upon the subject is brought together, and fully digested, — and it is clearly shown that it never was the English common law, that one was liable for mere nonfeasance, upon a gratuitous undertaking. The Roman civil law was otherwise. But it must be confessed, that, if one enter upon a mere gratuitous undertaking, and then neglect it, he is liable as for z. fraud, or gross neglect, which is, in such case, esteemed equivalent to fraud. Rutgers v. Lucet, 2 Johns. Cas. 92. For aught that appears in this count, the refusal to procure the deed recorded might have been upon the instant of receiving the deed, and it might have been a peremptory refusal ever to get it recorded, —or to give it up to the plaintiff for that purpose, — and in such case there would be no fraud ; the most that could be made of it-is a conversion of the deed.
4. But, fourthly, it seems impossible to make any just inference from the declaration, how the plaintiff lost the title to his land in consequence of the deed not being put upon record. I take it for granted, that, in pleading, it is not sufficient for the plaintiff to alledge a state of facts, which might, by possibility, result in loss, or damage, to him, — and then simply jump at the conclusion that he suffered damage; but he must state all the facts, by which the court can see that the damage resulted legitimately from the defendant’s act. And, for myself, I do not comprehend'how the loss of the land could result from the single act of refusal to put the deed upon record. If the title were in the defendant at the time of executing the deed, it would vest in the plaintiff upon the delivery of the deed ", which, indeed, is substantially alledged in the declaration. This, then, being the case, it could not be divested, unless the' defendant made a subsequent conveyance to some one ignorant of the first conveyance, and who first recorded his deed. And can it be pre*284tended that all this is to be intended by the court ? To do this would, in my apprehension, be disregarding the entire doctrine and science of special pleading, and reducing the matter, at once, to the simplicity of the ancient forms of pleading ore tenus. I will not attempt to state other cases, which, to my mind, seem parallel instances of the same, or a similar degree of looseness in declaring with the present, lest I might seem to treat the solemn determinations of this court with unbecoming levity, — which, I trust, I do not feel disposed to do, — but will content myself with adding, that, as no such case as the present ever has occurred, I cannot sustain my argument by reference to authority. So, as it is probable no such such case will occur again, therefore the determination upon this point is of little practical importance.
II. The other point involved is of more importance, as matter of practice. The plaintiff, in the assessment of damages, was allowed to recover the whole sum of ten thousand dollars, on the ground that judgment had gone against him upon demurrer, and in the declaration the plaintiff had alledged that “ he had lost all title to the land, and all benefit from the deed.” This is a different rule from any I had ever known before. In actions of tort, and, indeed, in all actions where the allegations are general, -as they always are in tort, I had supposed that a default, or demurrer, only admitted thht which it was necessary to prove in order to recover upon the general issue; — indeed, I think this will be found the true rule in all cases. Hence, if the declaration be upon a written contract, the entire contract is admitted, because it is necessary to prove the entire contract in order to recover upon the general issue; else there would be a fatal variance. In accordance with this general rule we find the cases. A bill or promissory note, sued, and judgment having passed on demurrer, or by default, in executing a writ of inquiry, need not be proved, for that is admitted by .the judgment; but it must be produced, in order to show that indorsements have not been made. Marshall v. Griffin, 21 E. C. L. 377. Green v. Hearne, 3 T. R. 301. 3 Wils. 155. 1 B. & P. 368. In the latter case it is said, that, in executing a writ of inquiry, it is not competent for the defendant to contradict any thing but the amount of the demand.
In Green v. Hearne, it is said, by Buller, J., “ When a defend*285ant suffers judgment to go by default, he admits the cause of action; and thus far an action for money had received and an action upon a bill are alike; but beyond that there is no similarity. For, in the former case, the defendant only admits something to be due, and, as the demand is uncertain, the plaintiff must prove the debt before the jury.” I have examined the following cases among others upon this subject, .and find them all sustaining the proposition of Mr. Justice Buller. Thellusson v. Fletcher, Doug, 314. Holdipp v. Otway, 2 Saund. 106, and notes. Hewit v. Mantell, 2 Wils. 374. Shepherd v. Charter, 4 T. R. 275. Berthen v. Street, 8 T. R. 326. Nelson v. Sheridan, 8 T. R. 395. Moody v. Pheasant, 2 B. & P. 446. Tripp v. Thomas, 10 E. C. L. 139. In this last case it is said the plaintiff may be entitled to such general damages, as will necessarily result from the facts alledged in the declaration, without introducing proof on his part, — and that must reduce it much to the same footing as the rule laid down by Justice Buller.
There are numerous American cases bearing upon the same subject, which fully sustain the above propositions, so far as I have had opportunity to examine them. Livingston v. Livingston’s Ex’rs, 3 Johns. 252. Foster v. Smith, 10 Wend. 377. Bates v. Loomis, 5 Wend. 134. Kerker v. Carter, 1 Hill 101. From all which I infer the universal practice is for the plaintiff, in all open actions, in assessing damages, to begin by showing the nature and extent of the injury; the defendant may then show any matter, in reduction of damages, which would not be good in bar of the cause of action;— and the plaintiff has the open and close in argument. And, unless this be the rule of procedure, I do not well see how the assessment of damages by the jury is of any importance. Hence, in the present case, I think the plaintiff only entitled to nominal damages in the first instance; and that it was competent for the defendant, at all events, to show that he had only suffered such damages. For, in order to make out that the plaintiff was entitled to such damages as he recovered in this action, we must first admit that it is sufficiently alledged in the declaration that the defendant conspired with some one to take a deed of the land, or in some way induced him to take a deed, and first put it on record; — and that this person either was ignorant of the plaintiff's title, or else there was no proof of his knowledge; and that this person had actually recovered the whole *286land; and, finally, that the judgment on demurrer is conclusive of all these points. Neither of which propositions can be made out, as I have attempted to show.
Since the decision of the present case, the forty second volume of the English common law reports has come to hand, where I find this whole subject reviewed, by the court of King’s Bench, in the case of Cooper v. Blick et al., pp. 975, 980. That was a case of money paid into court, in an action of assumpsit in favor of one as editor of a newspaper, for two years salary, at the rate of 400 pounds per annum. The defendant pleaded, bringing ¿£37, 10s, into court, and denying damages beyond that amount. According to the English practice'paying money into court has the same effect, in admitting the declaration, as a demurrer, or default. This is admitted in the argument of counsel, on both sides. Lord Denman, in delivering the opinion of the court, puts the case precisely on that ground, and says, as the amount of the salary is laid under a videlicit, the paying money into court does not admit the amount, as laid, and concludes in these words, “We should act on this principle, if a plaintiff declared for rent, under a lease, laying the amount under a videlicit, and judgment were suffered by default; if the rent appeared in .evidence to be less than was alledged, the plaintiff would recover only the amount proved to be due. It would be mischievous to introduce any doubt on the point raised here.”
I have noticed, too, in some of the late volumes of the English Com. Law Reports, an express rule of practice adopted by all the judges that, in all cases of open damages, where the defendant only pleaded in bar, and not the general issue, the plaintiff was allowed the close in argument to the jury, — on the ground that, even in that state of pleading, he must go forward with proof of his damages, or be content with nominal damages. Carter v. Jones, 25 E. C. L. 283, Reeve v. Underhill, lb. 644.*
From these two determinations, I think it must be obvious what *287the sense of the profession in Westminster Hall, at present, is. In the case of Cooper v. Blick, Mr. Justice Littledale puts the subject of these admissions, in pleading, upon the true ground. “ The true test is,” says the learned Judge, “ whether, if non assumpsit had been pleaded, the plaintiff would have been bound to prove the amount as laid. The payment [of money into court, a default, demurrer, or judgment by nil dicit,'] admits a contract, but only to that extent, to-which the plaintiff is bound to prove it. The admission cannot tie the defendant, where the plaintiff would be loose.” To apply this reasoning to this case, it must be clear, I think, that, without substantive evidence of the loss of the land, beyond what was admitted by the demurrer, the plaintiff was only entitled to recover nominal damages.
Note by Redpield, J. This latter ease does not extend the rule to such a case as the present, but expressly decides that proof is necessary to go to the jury in assessing damages in cases of covenant, where the defendant pleads only in bar, and the bar is found against Mm; which is bringing the case to that of a demurrer simply, or judgment by default. See also Lewis v. Wells, 32 E. C. L. 497; 1 Stark. Ev. 427, 428, and notes.