CH, 28. Utterson v. Vernon & al. $2. The English practice is to ascertain the damages by the judges only, when it is a mere matter of calculation; and Art. 2. if the amount of the plt's. damages can be ascertained without a jury's intervention, it may be proved under a commis- 3 T. R. 539, sion of bankruptcy, as stock on a certain day; so interest on 8 D. & E. 326, 395, 410; 4 Dal. 149. a given debt for a certain time. Dougl. 302; 1 H. Bl. 252, 541; 3 Dal. 355; 2 Saund. 107. —1 Dal. 185. 3. In this case the manner of computing damages on de- 5 D. & E. preciated money, was this; first the paper was reduced to spe- 4 Mass. R. cie value by the scale of depreciation; and then the interest 103, Edes & was computed on the specie amount, and both constituted the al. admrs., v. Goodridge. plt's. damages. Same rule in Virginia, as to British debts paid to the state. 1 Hen. & Mun. 144, State v. Walker. 87. 4 Mass. R. 4. In this case the warrantee of lands was evicted of them by an execution for the debt of the warrantor's testator, 151, Wyman and the warrantee redeemed them within the year; the sum hev. Brigden. paid, and interest, was held to be the measure of his damages; this sum removed the incumbrance. Decided in an action on the covenant in the deed. Same rule settled in New York. § 5. It is a settled rule that the plt. may recover less, but Imp. M. P. never more damages than he declares for, but he may always 191, 192.recover his costs over. And in all cases where the plt. has 1 Salk. 113. damages by the common law, he also has costs. Civil Code of $6. In assumpsit promises are the foundation of damages, See the rule which are for the delivery of goods, or for transporting stock, as to damaor some property, on demand, or on some day named; some- ges in the times to pay an unreasonable sum, and sometimes on failure to Louisiana, p. perform, to pay a sum in the nature of a penalty. In these 263, a. 50 &c. cases it is material to see how, and at what point of time, the plt. is to have his damages. $7. The judges will increase the damages given by the 1 Dyer 105. jury only in mayhem, and this on inspection, and according to -1 Wil. 5, discretion. Brown v. 8. In this case the court held, that if the plt. in replevin 4 Mass. R. neglect to prosecute his action, or replevy goods taken in exe- 614, Bruce v. cution, the deft's. damages are 6 per cent. on their bond, and Learned.in all other cases such as the jury shall assess. $9. Damages assessed against defaulters, though deft's. 2 Strange pleading to issue acquitted; and see Hill v. Goodchild. ART. 2. Promises to deliver goods, transfer stock, &c., on a day named. $1. If in these cases the plt. has a right to lay the express promise aside, and resort to his legal assumpsit, it is a distinct matter, and will not be considered in this place. But if he brings his action on the express promise, the question is how his damages shall be ascertained; between the day of delivery agreed on, and the day of trial &c., the value may vary very much. 1222. CH. 28. Gil. on Leases 360.- 3Cranch 298. Hob. 43, in § 2. But the rule seems to be well fixed, that the value on the day agreed upon for the delivery, transfer, &c., shall be the measure of damages, with interest thereon from that day. On that day, or at least the moment it ends, the plt. becomes entitled to have the goods or stock &c.; his right of action then attaches to recover his damages for the non-delivery or transfer, and the right of action is not affected by any subsequent rise or fall in price of the things to be delivered or transferred; and so are the authorities on the whole. English cases generally so; only one case, Shephard v. Johnson is contra; and this doubted. 3. The jury must assess damages according to the value of the corn, at the time it was to be delivered. And where the recompense is merely in damages, the rule is the same in simple and special contracts. In 1779, land in Virginia was leased by deed, annual rent £26, current money, forever. Held, the rent was to be reduced, not by the scale of depreciation, but the actual annual value of the land at the time the contract was made, in specie. 2 Cranch 10, Faw's case; 1 Hen. & Mun. 361, 338, Nichola's ex'r. v. Tyler, in chancery. A bond was given while paper money was depreciating; adjudged it was not liable to the scale of depreciation, in case of proof, by circumstances, it grew out of a hard money debt, payable therein, though this fact did not appear on the face of the bond; the circumstances appeared in accounts in writing. See Ambler v. Wild, 2 Wash. 36; Bogle & al. v. Vowles, 1 Call. 244; Call v. Ruffin, 1 Call 334 and 524; Walker v. Walker, 2 Wash. 195; Pleasants v. Bibb, 1 Wash. 8, on this subject of depreciation. Though the Virginia act applied the scale at the date of the contract, it allowed the courts some discretionary power, and Shipwith v. Clinch, 2 Call 253, the inquiry went behind the date of the contract. 2 Hen. & M. 550, 557, Faulcon, admr. of Hamlin, v. Harriss; depreciation of specie from 1774 to 1783 &c., 100 per cent. in Virginia, compared with lands and slaves, as when Harriss, in 1782, gave a bond to Hamlin, £50,000 penalty, conditioned to pay £1000 specie, "or such further sum as should be equal to the said £1000, in the year 1774, that is to say, to purchase as much land and as many negroes as it might have done at that time." Held, not usury, and the jury found £1000, in 1774, would have purchased as much land and as many slaves as £2000 in 1782, 1783, 1784, 1785, 1786 and 1787, within which years said bond was payable. Held, also the plt. to recover such difference must state and aver it in his declaration. §4. If one be entitled to estovers, and is deprived of them, v. Andrews.-Lutw. 58.-3 Wils. 429.-Stra. 406. Art. 3. he shall recover damages not according to the value when the CH. 28. action is brought, but the value when they become due. In all the declarations in the books, the value is laid on the day of delivery. Dyer 82; 8 D. &. E. 162, Saunders v. Kentish. Con. 409.1 Vern. 217, 2 Vern. 394, § 5. If one be to pay on such a day five quarters of corn, Powell on and at the day of the contract entered into it is valued at £50, and at the day of payment at £5, the promise will be Speake v. entitled either to the five quarters of corn or the £5. Hence, Speake. if he sue for the damages on the contract, £5 is the measure Gardiner v. of them. But if the thing, as stock to be transferred, rise in Pullen.— value after the day and before the decree, a court of equity 3 Cranch 278. may order the thing itself to be delivered. Damages, the Elwes. value of the flour the day the cause of action arose. Forrest v. Mass. S. Jud. 2593.-Stra. 2 Burr. 1011. § 6. In this case, Fish v. Wheeler, the declaration was on Court, Nov. a note of hand, dated Dec. 26, 1781, value received in 1790, Essex, continental money, I promise the plt. to pay him or order Fish v. Whee£600 in Pierce's and Imlay's final settlements, so called ler-5 Burr. &c., on or before the 26th day of February 1787, with inter- 406, Dutch v. est if not paid at the aforesaid time. No value was laid in the Warren.writ. These kind of public securities at this time of payment 3 Ves. jr. were worth 2s. 2d. in the pound, when the action was com- 629.—4 Ves. menced 7s., and at the time of the trial 12s. 4d. in the pound. jr. 492.The question was if the jury should assess as damages the 216--1 Wash. value 2s. 2d. in the pound on Feb. 26, 1787. After several 1-1 Bay. arguments this value at the time of payment was adopted by 105, 309, 357. the court as the rule. Same principle adopted 3 Wheaton's R. 200; also 3 Cranch 298; same principle 6 Wheaton 209, 218; holds too as to real estate, id. 2 Cain. Er. Rucker, § 7. The underwriter's contract of insurance is of indemnity Lewis v. or of warranty, that the thing shall go safe and undamaged; 2 Burr. 1167. and if damaged, he will pay the amount of the damage, that -2 Marshall is, the proportion of damage, as a fifth, a sixth, &c. taking the 535. prime costs as the basis; that is, the costs 66 at the outset," the shipping port. "He has no concern in any after value," in any rise or fall of the market. 8. The grantor of land covenants in his deed he has an 4 Dallas 441. indefeasible title; after eviction the grantee recovers only the value of the land when the deed was made, for then the cause of action arose. ART. 3. Promises to deliver &c. on demand. 1. In this case the time of the demand made is the rule; then the plt. becomes entitled to the thing, and his right of action attaches. and interest begins. 2. This case, Bartlett v. Moulton, was assumpsit on a Mass. S. Jud. note to pay or deliver corn on demand. The court held, 1st, Conrt, June 1784, Bartlett v. Moulton. Greenough v. Amory, post, Insolvency. CH. 28. 3 T. R. 539, v. Vernon. there must be an actual demand made, and that the contract is not broken till the demand is made: 2. That the damages must be estimated according to the price of corn at the time of making the demand: 3. That fish to the amount of £27 paid and endorsed on the note was no evidence of a demand of payment. 3. The promise in this case was to transfer stock, but no 549, Atterson time was named for doing it. The promisor became a bankrupt. The court held, that the day of the bankruptcy was the last day he could have to transfer the stock, and directed the jury to enter a verdict for the plt. for £5750, the price of the stock on that day. As this was the last day he had to transfer, it became a first day and operated as a day appointed, or as a demand, as the plt's. right of action then commenced and 1 Day's Ca, attached. In cases of frauds the jury is not restrained to any particular rule of damages. 250. 2 W. Bl. 1078, Flureau v. Thornhill. Dougl. 376, 752.-3 Wils. 4. In this case it was decided, that if A agrees or contracts to buy lands, to which without collusion the title proves defective, he is not entitled to any damages for the loss of his bargain; and Blackstone J. said, "these contracts are merely on condition frequently expressed, but always implied, that the vendor has a good title." "And if he has not, the return of the deposit with interest and costs is all that can be expected." § 5. In all these cases it seems reasonable for the jury to 205-4 Com. give interest as damages, after the day fixed for payment, or after the demand made, on general principles. See Interest 2 W. Bl. 761. and Insolvency, post. D. 406. 2 Ld. Raym. § 6. No damages can be recovered for any matter arising 1382, Baker after action commenced. If entire damages be given, judg ment is arrested if it cannot be for all. v. Backe. 1 Wils. 295. -1 Lev. 11, gan. ART. 4. Promises to pay unreasonable sums. 1. When a bargain is so exceedingly unreasonable as eviJones v. Mor- dently to have been made under some mistake of both parties, the promisor may be relieved and charged with reasonable damages even by a jury, as where one agreed to pay for shoeing a horse, a barley-corn for the first nail, and so double every nail, which amounted to 500 quarters. The court directed the jury to find a less and reasonable sum. This was held clearly to be a bargain that no man in his senses would make. There is a like case 6 Mod. 305. 12 Mod. 542, § 2. Where the plt. has recovered damages in assault and 543, Filter v. battery, they are according to the injury, and a full satisfaction; and no action lies for consequential damages. Veal. 1 Mass. R. 153. 3. Where by law damages are to be doubled or trebled, and the jury finds single damages, the court doubles or trebles them &c. 4. Owners of a vessel held to pay more for their master's misconduct to the party injured by him than they recovered of him in their suit against him. The sum they paid not a fixed measure; 1 Dallas 185. CH. 28. Art. 5. dal.-5 D. & E. tions of fraud ART. 5. Damages agreed as measure. 1. When a for- 1 W. Bl. 389, feiture or sum is named in an agreement &c., the question Bird v. Ranoften is, when it is fixed by the parties and ought to be con- 636-1 Day's sidered as the measure of damages; or when it is a mere Ca. in E. 250, penalty to be chancered, or damages liquidated by the 255. In parties and not to be chancered. If a servant depart from his the jury is master's service and pay the penalty, no action lies against the not confined enticer. And Lord Mansfield observed, the true construction rule of damto any precise of all articles guarded with a penalty, is to afford either "of ages, Norton two remedies to be pursued at the option of the party injured;" one from time to time for real damages, and a remedy given in terrorem by way of punishment beyond the value of contract for a the injury done, and therefore called a penalty. When equity that is, the considers this penalty as a security to enforce the performance measure, id. of the thing it will relieve against it, but not when considered Tyler v. as a rigorous punishment. v. Hatheway a written sum certain, Marsh. rence v. Par § 2. In this case, Lawrence v. Parker, this subject of liqui- 1 Mass. R. dated damages is considered; and there is considerable doubt 191, Lawwhat damages are to be viewed as liquidated or ascertained ker. by agreement of the parties. Winter v. Longdale v. 3. This seems now to be well settled, that one in this 1 W. Bl. 395, case of assumpsit, as well as in some other cases, may recover in damages more than the penalty of a charter-party or other 2 T. R. 388, contract, for a breach thereof. So more than the penalty of a bond, 6 D. & E. 303; 1 East 436; see Ch. 112, a. 5, s. 3; Bunb. 23; 4 D. & E. 33; 2 H. Bl. 436, 547; 2 W. Bl. 1190; 2 P. W. 191; Stra. 533; 10 Mod. 511; 2 Dal. 352; 4 Dal. 149. Church. Whittemore. 4. And even against a surety in a bond, though this has 1 Mass. R. been much contested. But it may be observed, that when 308, Harris t. the surety makes the contract as to pay money with interest, he engages as to all the reasonable consequences; and his contract in fact, is to pay principal and interest, though they shall together exceed the penalty. See Ch. 148, a. 1, s. 9, as to surety; but see a. 13, s. 3. Fletcher r. $5. If one agree to perform certain work each week, and 2T. R. 32,37, on failure to pay a weekly sum, this is not a penalty; but Dyche.is in the nature of liquidated damages. Ashhurst J. said, this 2 Bos. & P. 346, 354.is a case of liquidated damages agreed on to prevent disputes; 3 Caines' R. it would be difficult for a jury to ascertain the damages. Bul- 43, but 6 Ves. ler J. said, this is a case of liquidated damages, and like 411. demurrage. In either case it is impossible to ascertain precisely what damages the party has really sustained; and |