Definition
"Of or for the better damages." A Latin procedural term denoting the election a plaintiff makes, in an action against multiple defendants where damages have been assessed separately against each, to select which defendant's judgment he will take and enforce. Where a jury returns different damage amounts against different defendants, the plaintiff cannot collect all of them — he must elect against which defendant he will take judgment. De melioribus damnis is the formal name for that election, typically exercised in favor of the defendant against whom the greater (better) damages were assessed.
Common Confusion
This term is sometimes loosely associated with election of remedies, but the two are distinct. Election of remedies governs the choice between inconsistent legal theories or forms of relief. De melioribus damnis governs a narrower, procedural question: which of several separately assessed damage awards a plaintiff will pursue to judgment when multiple defendants are liable. The confusion is understandable — both involve a plaintiff making a binding choice — but the doctrine of de melioribus damnis operates specifically at the judgment stage of multi-defendant litigation, not at the pleading or theory-selection stage.
Why It Matters in Research
Researchers encounter this term almost exclusively in older English and early American case law and practice manuals. Its relevance today is primarily historical: modern procedural rules in most jurisdictions have dissolved the conditions that made this election necessary. Under contemporary joint and several liability frameworks and unified judgment practice, separate damage assessments against multiple defendants in a single action are handled differently, and a formal election of this kind is rarely required.
Several traps await the historical researcher. First, the term appears in abbreviated or paraphrased form in early reports — "election as to better damages" or simply "election of damages" — without the Latin phrase, making corpus searches by term alone incomplete. Second, the doctrine's application depended on procedural conditions specific to common law pleading: separate jury assessments against co-defendants, which themselves arose from particular joinder and pleading configurations that no longer exist. Understanding why this election was necessary requires background in common law pleading rules, not just the doctrine itself.
The New York cases are the most developed American authority. Knickerbacker v. Colver, 8 Cow. (N.Y.) 111, cited consistently across all three source dictionaries, is the anchor American case and should be the starting point for any research into how American courts received and applied this English practice doctrine. Archbold's Practice in the King's Bench (1 Arch. Pr. K. B. 219) is the primary English practice manual source and reflects the doctrine's procedural home in King's Bench pleading.
Historical Dictionary Support
All three source dictionaries — Black's (1st Ed.), Black's (2nd Ed.), and Burrill's — are in complete agreement on definition, scope, and authority. The entries are nearly identical in substance, with Black's 2nd Ed. adding the full case name for the New York citation (Knickerbacker v. Colver), which the earlier editions gave only as "8 Cow. 111." This convergence across dictionaries, combined with their brevity, signals that the doctrine was well-settled but narrow — not a subject of significant doctrinal dispute.
Burrill's entry, consistent with Burrill's general practice, preserves the Latin grammatical classification ("L. Lat.") and otherwise tracks Black's language precisely. None of the historical sources explain the underlying procedural mechanics in any depth; they treat the concept as self-evident to their contemporary audience. Modern researchers will need to consult period practice manuals — particularly Archbold's King's Bench practice — to understand the procedural context that gave the doctrine its meaning.
Jurisdictional Note
The doctrine developed in English common law practice and was received in early American courts, particularly in New York. Its application was always tied to common law pleading systems. With the adoption of code pleading in the mid-nineteenth century and later the Federal Rules of Civil Procedure, the procedural conditions underlying de melioribus damnis largely disappeared. The doctrine has no recognized modern application in federal courts or in states that have fully modernized their civil procedure rules.