DIGEST OF REPORTS. DAMAGES. I. GENERAL POINTS, 877. II. IN ACTIONS FOR PERSONAL INJURIES. 1. Generally, 878. 2. Mayhem, 878. 3. Malicious Arrest-See CASE. 4. Libel and Slander-See DEFAMA TION. 5. Trespass-See TRESPASS. Where, in an action for a libel, the defendant pleaded the general issue, and several special pleas stating that it contained a true account of proceedings in a court of law, and the jury found for the defendant on six out of eight pleas comprehended in the last of two issues and for the plaintiff on the residue of such pleas, and on the first issue, without assessing any damages; and the plaintiff having, pursuant to the decision of the 6. Master and Servant-See MASTER Court of K. B., entered up, as to the pleas found RIER. IV. IN ACTIONS ON CONTRACTS. 1. Generally, 878. 2. Bonds-See BOND. 3. For Contribution-See AsSUMPSIT. 6. Interest as Damages-See INTEREST V. DOUBLE OR TReble Damages, 879. I. GENERAL POINTS. for the defendant, judgment non obstante veredicto, with an award of a writ of inquiry to assess the damages-the court of Exchequer Chamber, in error, reversed the judgment of the court of K. B. as to the award of the writ of inquiry and the final judgment thereon; and remitted the record to that court, and directed them to award a venire de novo to try the first issue and the last, as far as related to the pleas on which the finding was for the plaintiff; on the ground that the verdict found for him on the first issue and on the last (so far as regarded the pleas on which the finding was for him) was void, because no damages had been assessed by the jury. Clement v. Lewis (in error), 7 Moore, 200; 3 B. & B. 297; 3 B. & A. 702. Quære, whether a writ of inquiry, or a venire facias de novo, be the proper course of proceeding in an action of debt on bond, conditioned for replacing stock, to assess damages, where the defendant pleaded a set-off under the statute 8 Geo. 2, c. 24, s. 5, on which issue was joined, and there was no award upon the roll to inquire of damages, but a mere venire facias to try the issue, which turned out to be immaterial? Gillingham v. Waskett, M'Clel. 198, 206, 568; 13 Price, 484. The jury are the proper judges of damages, The court will not interfere to reduce damages and when they have once decided, the court will where a plaintiff has obtained a general verdict not in general disturb the verdict, unless they for several items, while he has a good cause of have taken into consideration matters out of the action, even if he could not by strict law recover declaration or form of action; or, in matters which for some of them in the form of action in which admit of certain estimation, they have extrava- he has declared. Mayfield v. Wadsley, 5 D. & gantly, or through prejudice, exceeded such R. 224; 3 B. & C. 357-Abbott.' measure. Gilbert v. Birkenshaw, Lofft, 771; It is an established rule, that where one count Cowp. 230. contains two claims or complaints, for one of If the plaintiff has evidently sustained some which the action is maintainable and not for the damages, and the jury, being unable to ascertain other, all the damages may be applied to the the amount, find a verdict for the defendant, the good cause of action. Where they are stated in court will permit the plaintiff to enter a verdict separate counts it is different. Dyeball v. Doe d. for nominal damages. Feize v. Thompson, 1 Lawrie, 2 M. & R. 184; S. C. nom. Doe d. Lawrie v. Dyeball, 8 B. & C. 70. Taunt. 121. VOL II-1 II. IN ACTIONS FOR PERSONAL INJURIES. 1. Generally. A verdict will be set aside for excessive damages if the jury go out of the case. Seale v. Hunter, Lofft, 28. sioner. Evelyn v. Raddish, Holt, 543-Gibbs; S. C. not S. P. 7 Taunt. 411. Where, in an action on the case against attorIn actions for injuries to the personal reputa-tor, to whom an action of ejectment brought by neys for negligence, in not attending an arbitration, there can be no certain measure of damages the plaintiff against his tenant had been referred, but the particular circumstances of the case un- and the costs were to abide the event, and the der consideration. Gilbert v. Birkenshaw, Lofft, plaintiff alleged, that, in consequence of such 771; Cowp. 230. negligence, he was obliged to pay the defendants 607. for his costs incurred in the action of ejectment, which the tenant would otherwise have been obliged to pay, and that he sold the pre. In an action at the suit of a passenger for false mises for much less, to wit, 1007. less, than he imprisonment by the captain, the former cannot would otherwise have done, and the jury found a recover, as special damage, additional passage verdict for the plaintiff, damages, 1607.:-Held, money paid for returning in another ship, to on a motion for a new trial, that the jury were which he had removed, unless proof be given not confined to 100l. as the damages for the loss either that the imprisonment continued until on the sale of the premises. Swannell v. Ellis, the time of removal, or that the plaintiff had a 8 Moore, 340; 1 Bing. 347. reasonable fear of his personal safety. Boyce v. Bayliffe, 1 Camp. 58-Ellenborough. Special damages cannot be recovered in an ac. tion for a seizure under an illegal warrant, where there is an action pending for the same injury against the person upon whose information the justice acted. Price v. Messenger, 3 Esp. 96; 2 B. & P. 158. IV. IN ACTIONS ON CONTRACTS. 1. Generally. If a party entitled under a contract to receive a profit from another, by his own act so confounds the measure of that which he was to re Damages cannot be severed, where the count is for a joint trespass, and the jury find the de-ceive, that it can be no longer ascertained, he vafendants guilty accordingly. Hill v. Goodchild, cates his whole claim. 5 Burr. 2790. In an action for wounding the plaintiff's son, per quod servitium amisit, the plaintiff is entitled to recover the amount of the surgeon's bill, although it has not been paid; but he cannot recover physician's fees which have not been paid. Dixon v. Bell, 5 M. & S. 198; 1 Stark. 287. 2. Mayhem. In an action for mayhem, the damages may be increased by the court on view of the party. Hoare v. Crozier, 2 Tidd's Prac. 928. Taunt. 150. Pringle v. Taylor, 2 Therefore, where A. agreed to find sufficient coal for B.'s engine to draw water from A.'s mine and B.'s little coal as they then stood; and B. sunk to a lower seam, in draining which he drained the other two scams, but consumed for his engine more coal than before:-Held, that A. was no longer bound to furnish any coal, because B. had destroyed the measure of suffi ciency. Id. But a building contract for a particular sum, where additions have been made to the original plan, remains binding so far as it can be traced; But it is discretionary in the court whether any further sums can only be recovered on a they will increase the damages, which, if they quantum meruit. Pepper v. Burland, Peake, 103 see proper, they have the power to do. Brown-Kenyon; S. P. Robson v. Godfrey, Holt, 236; v. Seymour, 1 Wils. 5. And before the court will increase the damages super visum vulneris, it will be proved to be the same wound for which the damages were given. Smallpiece v. Bockingham, Bull. N. P. 21. III. IN ACTIONS FOR INJURIES TO PROPERTY. 1. Generally. In an action for throwing poisoned barley upon the plaintiff's premises in order to poison his poultry, the jury are not confined in their verdict to the actual damages sustained, but may consider the malicious intention of the defendant. Sears v. Lyons, 2 Stark. 317-Abbott. 1 Stark. 275. One may recover more than the penalty of a charter-party in damages, by action on the case, for breach of contract. Winter v. Trimmer, 1 W. Black. 395-Mansfield. Where the defendant having purchased certain shares of an East India ship commanded by the plaintiff, and chartered by the company for four voyages, proposed to the plaintiff to resign the command in favour of the plaintiff's nephew, on receiving in exchange the command of another ship, and two voyages only were performed at the time of the commencement of an action against the defendant for a breach of the agree ment, in not appointing the plaintiff to succeed him :-Held, that the jury might give damages for the loss of the two remaining voyages. A tenant for life, in covenant, can only reco-Richardson v. Mellish, 2 Bing. 229; 9 Moore, ver such damages as are commensurate with the 435; 1 C. & P. 241; R. & M. 66. injury done to his life estate, and not the da- Defendants engaged plaintiff to superintend mages which may be sustained by the rever-mines in America for three years, at a salary of 6OOL per annum, to increase 501. every year, and The stat. 28 Geo. 3, c. 37, s. 24, gives a plaincommence from his leaving England, with a pro- tiff only two-pence damages, "besides the goods viso that the plaintiff should not be dismissed seized, or the value thereof," if the judge certiwithout a twelvemonths' notice or a twelvemonths' fies that the officer had probable cause for the salary, and the reasonable expenses of his return, seizure: in trespass against custom-house offiand that if he stayed at the mines three years a cers for seizing a quantity of verdigris of the sum should be allowed for the expense of the re- plaintiff's, which was afterwards returned to him turn of his family. Plaintiff left England in in a deteriorated state before the commencement August, 1825, and arrived at the mines in April, of the action, and sold at a less price than it was 1826; defendants dismissed plaintiff in Septem- originally worth, in consequence of the seizure; ber, 1827, without giving notice or paying a and a verdict was found for the plaintiff, for the year's salary, or any expenses of return. In an difference in price between the value at the time action for the breach of the contract, a verdict of the seizure, and when returned:-Held, that having been given with damages to cover a year's damages given for the deterioration in value salary from the time of dismissal, with leave for were recoverable, notwithstanding the judge's the plaintiff to move to increase the damages by certificate under that statute that there was pro3201. the expense of the return of the plaintiff's bable cause for making the seizure. Laugher family, and 4701. the amount of salary from the v. Brefitt, 1 D. & R. 417 ; 5 B. & A. 762. end of a year after dismissal to the end of the third year after his arrival at the mines :-Held, that the plaintiff was not entitled to increase the damages to the amount of those sums. v. Brooks, 6 Bing. 354. French DAMAGE FEASANT-See DISTRESS, REPLE I. PROOF OF, 879. VIN. DEATH. II. WHEN ABATEMENT OF ACTION-See Ac TION. BITRATION. In assumpsit, for not giving the plaintiff possession of certain apartments and fixtures in the defendant's house, agreed to be let by him to the plaintiff, under a written agreement, in consideration of a certain annual rent, the plaintiff may give evidence of a particular loss sustained by breach of such an agreement, although he may III. WHEN REVOCATION OF SUBMISSION-See AR have stated the loss generally in his declaration; therefore, evidence of loss of business by the IV. WHEN DISCHARGE OF BAIL-See BAIL. plaintiff's wife, in her trade of a milliner, was beld admissable as evidence of general damage, where no special damage on that ground was laid in the declaration; nor any particular customers named, nor any averment introduced as to the nature of her business. Ward v. Smith, 11 Price, 19. V. DOUBLE OR TREBLE DAMAGES. I. PROOF OF. The presumption of death from length of time has relation to the commencement of the period. Webster v. Birchmore, 13 Ves. jun. 362. In making a title by pedigree, evidence that a man has not been heard of for many years is sufficient evidence prima facie to prove him dead without issue. Rowe v. Hasland, 1 W. Black. 494. Where a statute gives by way of penalty, for withholding duties, double or any other multiple Proof by one of the family that many years beof the sum withheld, the sum found by the jury is to be taken as the amount due in point of fact; fore a younger brother of the person last seised and it is the course of the court for the officer to had gone abroad, and that the repute of the enter the verdict for the multiplied amount of family was that he had died there, and that the the sum found by the jury: and the court dis- witness had never heard in the family of his charged a rule for reducing a verdict so entered, having been married, is prima facie evidence to the sum found by the jury, where from evi- that the party was dead without lawful issue, to dence it appeared that the duties withheld entitle the next claimant by descent to recover amounted to about double that sum. Attorney-in ejectment. Doe d. Banning v. Griffin, 15 General v. Hatton, M'Clel. 214; 13 Price, 476. East, 293. Where a tenant for life has not been seen or Where a statute gives treble damages, the plaintiff is entitled to three times the full amount heard of for fourteen years, by a person resident of the damages found by the jury, and treble near the estate on which he resided, although costs; and the damages are not to be calculated not a member of his family, it is prima facie eviin the manner treble costs usually are. Buckle dence of the death of such tenant. Doe d. Lloyd 1. Bewes, 6 D. & R. 1 ; 4 B. & Č. 154, 1 Chit. v. Deakin, 4 B. & A. 433. 137, 141, (a). VI DAMAGES UNDER PARTICULAR STATUTES. There may be a remittitur of damages where there is a judgment by default on a remedial statute. Gurney v. Gordon, 2 Tyr. 616. Where a vessel is proved to have sailed, and has not been heard of for two or three years, it is to be presumed that she is lost; but at what time an individual, who sailed on board of such vessel perished, is to be collected by the jury from the particular circumstances of the case. Watson v. King, 1 Stark. 121-Ellenborough. An issue was directed to try whether F. M. good, though it specify by the several counts a was living at the death of his father, when both less sum than appears to be demanded, and had been shipwrecked together on their voyage yet assigns as a breach the non-payment of from India, and all on board had perished. Mason the sum demanded. M'Quillin v. Cox, 1 H. v. Mason, 1 Mer. 308. Black. 249. A. claimed in ejectment as heir-at-law of B., And in such an action the plaintiff may prove A. traced his pedigree through the youngest son and recover a less sum than is stated to be due. of a common ancestor, who in the year 1689 had Id. four elder sons, whose descendants (if any) would have had a better title than B.:-Held, that the A declaration in debt on a quantum meruit, length of time was a sufficient ground to pre- stating that the defendant agreed to pay so sume their death, and that the court would take much, &c., was good, being similar to a consent it that they all died without issue, unless there solvere: aliter, if he undertook and faithfully was some evidence to induce a presumption promised, which sounds in assumpsit. Ninan v. that they, or some of them, married and left Bland, 3 Smith, 114. issue. Doe d. Oldnall v. Deakin, 3 C. & P. 402| A declaration beginning in debt, and contain-Vaughan. S. C. not S. P. 2 M. & R. 195, n. ing some counts stating that the defendant, beThe law always presumes against the coming indebted, undertook and promised to pay, mission of crime; and, therefore, where a wo&c., whereby actio accrevit, and other counts framed in debt, stating that the defendant was man, twelve months after her first husband was last heard of, married a second husband, and had indebted in a certain sum to be paid to the plainchildren by him:-Held, on appeal, that the tiff, whereby, &c., is bad for the misjoinder. sessions did right in presuming prima facie Brill v. Neele, 1 Chit. 619; 3 B. & A. 203. that the first husband was dead at the time] A count, stating that the defendant undertook of the second marriage; and that it was in- and promised to pay, is in assumpsit, and not in cumbent on the party objecting to the second debt, although it conclude, "whereby an action marriage to give some proof that the first hus- hath accrued," &c.: the form in debt is, that deband was then alive. Rex v. Twyning, 2 B. & fendant agreed to pay. Id. A. 386. A count that the defendant, in consideration Under a plea of coverture, where it appeared that the plaintiff had sold and delivered divers that the defendant's husband went abroad twelve goods, undertook to pay quantum valebant upon years ago:-Held, that she was bound to prove demand, with an averment that the said goods that he was alive within seven years. Hopewell were worth 201. whereby an action hath accrued v. De Pinna, 2 Camp. 113-Ellenborough. to the plaintiff, is not a good count in debt, and cannot be joined in a declaration with counts in debt. Daltor v. Smith, 2 Smith, 618. An affidavit, stating that the defendant died on such a day, and that the deponent had seen him in his coffin, is sufficient for the purpose of Debt upon an amercement in the leet, founded reversing an outlawry, where the defendant dies upon a presentment by five aleconners, and upon abroad; and the ordinary rule that there must be a mutuatus, may be joined in the same action. a certificate from the minister of the parish where Bedford (Duke) v. Alcock, 1 Wils. 249. the party died or was buried does not apply. Rex v. Buchanan, 1 C. &. M. 195. In a declaration in debt in C. P. it was unnecessary to refer to the clausum fregit of the writ; Though, where a party has not been heard and an averment in such declaration, under a of for seven years after going abroad he will videlicet, that that court was sitting on a day at the expiration of that time be presumed to Luckett v. Plummer, 2 B. & B. 659; 5 Moore, in vacation, may be treated as surplusage. be dead, there is no presumption raised by the law as to the time when the death actually took place; but this is a matter concerning which the jury must form their opinion upon the particular facts of the case. Doe d. Slade v. Ne. pean, 2 Nev. & M. 219. DEBAUCHING DAUGHTERS-See INFANT. DEBT. 538. A declaration in the debet and detinet, where the original was in the detinet only, was held not fatal. Anon. Lofft, 396. Where the debt sued for is one entire demand, and the plaintiff proceeds for a part only, he must aver that the rest has been satisfied. Dickenson v. Harrison, 4 Price, 282. In debt on a by-law for not paying 28. per annum quarterly, the breach need not assign the days of quarterly payment. Innholder's case, 1 Wils. 281. In debt by bill, the declaration was good, A plea of nil debet to an action of debt on a though the sums demanded in the several judgment, though a bad plea, is not to be treated counts amounted altogether to more than the as a nullity. Anon. 2 Chit. 239. sum at first demanded in the queritur; for that is superfluous, and may be rejected. Lord v. Houstoun, 11 East, 62. A plea of not guilty to an action of debt on a penal statute, is not such a nullity as warrants judgment to be signed for want of a plea. Coppin In debt on simple contract the declaration is v. Carter, 1 T. R. 462. |