Formerly in a suit on a bond the measure of damages was the face of the bond; relief against such damages could only be obtained in equity and even these was originally only granted in cases of fraud, extremity or accident.4 At the present time the limit of recovery is the actual damage. If, however, the amount of the bond is in the nature of liquidated damages, the amount of the face of the bond can be recovered.5

2 The statement of the rule is open to criticism, and, unexplained, is sometimes misleading. "What is meant by the words, 'in contemplation of the parties?' It would seem that contracting parties - certainly honest ones - do not contemplate the breach of their contracts when they enter into them, and hence cannot contemplate the consequences of a breach. * * * We are aware that the language or phrase we have been criticising has been repeated and re-repeated, in many judicial opinions. It has come to almost a stereotyped phrase; so general that it may appear to be temerity in us to question its propriety. We think, however, it is in itself inapt and inaccurate, and that its import has been greatly and frequently misunderstood. It is often employed in apposition to, or as the synonym of, that other quality clause, 'the natural result of,' or 'in the usual course of things.' We think this is a great departure from the sense in which Baron Alderson intended it should be understood. Altogether, we think it obscure and misleading, and that an attempt to install it as one of the canons has caused many, very many, erroneous rulings."

3 Hale on Damages, p. 55, 56.

4 Whitfield vs. Levy 35 N. J. L., 149 (citing Cary Rep. 1; Harrison L. tracts, 431).

5 "Where the precise sum is not the essence of the agreement, the quantum of damages may be assessed by the jury; but, where the precise sum is fixed The measure of damages for the breach of an alternative contract is compensation for the least beneficial alternative.