Art. 5. CH. 28. therefore, the contracting parties agree to pay a stipulated sum. No damages on recognisance of bail for delay of execution, 2 Ld. Raym. 1130. 4 Burr. 2225, on Con. 205. -6 D. & E. 13, 14. 2 Wils. 5, 6, -5 Wood's Con. § 6. The party agreed to marry or pay such a sum; this sum is fixed, and is the ascertained damages by agreement, and Lord Mansfield said, "there is a difference between covenants in general, and covenants secured by a penalty or forfeiture. In the latter case the obligee has his election." Stinson v. Hughes. $ 7. On that bond or contract given to save a parish harmless Cook v. Pettit. from the maintenance of a bastard child, the court held, a penalty in such a contract cannot be chancered, and is 2 Vern. 119. not within the 3 & 4 of Anne. It must be because there is no -Finch 117. rule to chancer by. 1 Fonb. Eq. 142, 156; 2 Do. 423. 8. "Chancery never relieves, but in such cases where it 113.-2 Pow. can give some compensation in damages, and when there is some rule to be the measure of damages to avoid being arbitrary;" never without a rule or measure of damages. -3 Atk. 395. Mod. 8 & 9, on Con. 205, Wafer v. Mocato. 3 Bl. Com. 435. 2 Chan. Cases 198-2 Pow. on Con. 206, Blake v. E. I. Mass. S. J. Court, June 1784, Peters v. Wilkins. 2 Wils. 377, Drape v. Brand. Cowp. 357, 9. A court of chancery no more than a court of law can relieve against a penalty in the nature of stated damages;" "nor can mere damages" be adjudged by the chancellor's conscience, but only by a jury, it is their exclusive province to ascertain mere damages, except in Justices' courts &c. in small cases, and not in these in all the States. 10. One, an agent of the company, covenanted he would not trade for himself &c. in several commodities, on a penalty, which much exceeded the value of the goods; he did however trade. Being sued, he proved the trading to be for their benefit. But the court held, there could be no relief against the penalty, as there was no measure of damages. § 11. Peters bound himself to find Mrs. Wilkins necessaries during life, and mortgaged land as security; he neglected to find the necessaries &c. and she brought an action of ejectment to recover the land. And the court held, the contract could not be chancered, there being nothing, no rule to ascertain the damages by, and the court said that they may amount to the penalty. 12. But in a lease it was provided, that if the lessee cut trees and did not repair, he should be subject to the penalty of £500. He cut trees and did not repair, but the court held, that on 8 & 9 W. III. Ch. 10, the jury ought to consider the whole case, and assess the real damages done to the farm. § 13. And where the deft. agreed on a penalty of £250 to sink a pit, and to begin in fourteen days, and failed. On the 8 & 9 W. III. Lord Mansfield said, the act directed that alty, 2 Bos. & the penalty should not be levied in any case, but the judgment What a pen P. 346. +nust be as usual to recover the debt as heretofore, but then it CH. 28. only stands as a security for the damages sustained. Art. 6. 14. From these, and many other cases that might be cited, it is difficult to decide when the plt. is to recover the pen- 3 Bos. & P. alty in any contract as such, or the penalty as damages stated 630-2 W. by the parties; or 3d, when he is to recover real damages. No precise line seems to be drawn between the cases. By the Massachusetts acts, provision is made respecting penalties; but they do not affect the above distinctions. Bl. 1190. 15. This act provides that in all cases, in the Supreme Judicial Court or Common Pleas, "to recover the forfeiture Nov. 4, 1785. Mass. Act, annexed to any articles of agreement, covenant, contract, or charter-party, bond, obligation, or other specialty," when the forfeiture, breach, or non-performance, shall be found by a jury, by the default or confession of the deft., or upon demurrer, the court make up judgment for the plt., " to recover so much as is due in equity and good conscience." 66 § 16. And by another act it is provided, that a judgment Mass. Act, on a penalty in a bond, payable by instalments, shall stand as March 1, a security for further damages. These acts are the old province laws revised. 17. On these acts a penalty can be found or confessed, and so recovered; or when the plt. sues for it, and it can be chancered only when he sues for it, and then, as in the case of Peters v. Wilkins, only when there is something to chancer by ; and as in the case of Cook v. Petit & al., before. So it cannot be chancered where the sum is as damages agreed and stated by the parties, as in Fletcher v. Dyche; or where the plt. sues merely for his damages, as stated in some of the preceding cases. § 18. If there be any general principle applying to the cases, a part of which are stated in this fifth article, it is thisthat whenever one agrees to perform services &c., and if he fail, to forfeit such a sum, this sum is the measure of damages, whenever it may be inferred the parties so intended it, or whenever it is the best rule in the case, from the uncertainty in applying any other, for want of a measure of damages. 1799. $19. In debt on the penalty of a bond, payable by instal- 1 Mass. R. ments, according to said act of 1799, the court will enter 10, 12, Wal judgment for the damages incurred up to the time of the do. Fobes judgment. & al. $20. In a judgment on a mortgage, principal and interest 2 Mass. R. were allowed exceeding the penalty. 118, Pitt v. Tilden. ART. 6. Nominal damages. $1. If judgment be obtained 2 Mass. R. against a bankrupt, who has obtained his certificate for a debt 374, Selfridge due before the bankruptcy, and the execution be delivered to v. Lithgow." VOL. I. 70 CH. 23. the sheriff, and he neglect to serve it, the creditor can recovArt. 7. er only nominal damages. 2. So nominal damages were given in this case because Sparhawk v. the debtor was insolvent. Action against the sheriff. Bartlett. 2 Mäss. R. 256, Burrill So in an action against the sheriff for the escape of a debtor, committed on original process, through the insufficiency of the v. Lithgow. goal, the jury has a discretion in assessing damages, and are not bound to find the whole sum. See Escape, Ch. 65, a. 5. 3. This was trover for a horse, and damages were assessed by the direction of the court. 5 Mass. R. 104. Wheelock v. Wheelwright. 8 Mass. R. Fuller. Damages, proper evidence to increase or decrease, see Evidence, Ch. 85. Reasonable damages for taking insufficient bail, 13 Mass. R. 187, 189, Shackford & al. v. Goodwin. This was debt on $4. Penalty, the measure of damages. 223, Pierce v. an obligation by which the deft. for $1 consideration agreed not to run a stage between Boston and Providence in opposition to the plt's. stage; penalty $290. Held, this agreement valid, and as the deft. had violated it, he had incurred the penalty, the measure of the damages liquidated by the parties; and this was only a limited restraint on the deft's. trade or business. 10 Mass. R. 5. Case against a sheriff for the neglect of his deputy, 470, Weld v. Coburn. Coburn had an original writ against W. Hill, for the plt. Hill was in extreme sickness and poverty, and Coburn having arrested him, returned he had taken bail, when in fact he had taken none. This action was for a false return, and the deft. was permitted to shew these facts in mitigation of damages, and that the debtor having recovered his health did not conceal himself. The jury gave nominal damages, and held well. Bartlett.- 3 Dallas 302, 304, 337. Salk 11. 3 Dallas 88, 115.-11 Co. 6, 7.-1 Hen. & Mun. 488. 73, 118.- 115, Saben v. Hill v. Good § 6. Judgment or decree affirmed on error, no damages but for the delay. ART. 7. Damages in trespass. §1. A recovery in an action for assault and battery bars all future actions or damages. If two commit a trespass or convert goods, and the plt. recovers against one, it bars trespass or trover against the other; for the judgment reduces the uncertain damages to a thing adjudged. If two commit a trespass, release to one (see Cook v. Jenner, Ch. 167, a. 3,) is a bar as to the other. Judgment for the best of several damages in trespass, 1 Wils. 30. § 2. In a joint action of trespass, when the jury find the 5 Burr. 2790, defts. jointly guilty, the jury cannot sever the damages, according to the degrees of guilt; as 1s. to one, and 40s. to 2 Esp. 115, another; same rule if defaulted, Stra. 422; this is the case 116.-Chap child. man v.House, Slater and Goodacre, 2 Stra. 1145.-See Carth. 19, 20.--See Ch. 91,a. 8, s. 8. when they plead jointly, for if they sever in their pleas, and CH. 28. Art. 7. Hill v. Hum -See many cases cited 3 103, and Rod ney v. Strode pleas do not appear nor finding. This was trespass for battery and wounding, brought by H. Crane and against C. and H. in the C. B. One pleaded to all except merstone, wounding, that it was in self-defence, and as to the wounding, Cro. Jam. not guilty. The other justified all in self defence. Issues 118, in error. joined, and the jury found both issues against the first, so guilty of the whole trespass charged, and assessed damages £20, Mod. 101, also found against the other so guilty of the whole trespass and assessed damages £100. Judgment accordingly revers- at large. ed on error, because the damages should have been joint and but one sum, and clearly so, for a joint trespass was charged, and in fact a joint trespass was found, for each was found guilty of the whole of one and the same trespass, for which one and the same trespass there could be but one satisfaction; for it is clear where the jury find jointly even only in substance, one trespass only, they cannot sever the damages. This was trespass against three defts.; one confessed the action, the other two pleaded not guilty, jointly. Verdict for the plt., and £1000 damages against one, and £50 against the other. The plt. entered a nolle prosequi against him defaulted, also against the one for the £50, and took judgment only for the £1000 against Strode; so this cured the defect of the verdict. This case seems clear, for here one deft. admitted the whole of one and the same trespass, and the other two joined in denying the same. Rodney v. Strode, Carth. 19, 20.-See like case 6 D. & E. 199, see Ch. 194, a. 3, 1 Bulstr. 157, s. 3, this case. 860.-2 Hen. So in this case trespass and battery, two of the defts. plead- Austin v. Wiled son assault, &c. severally; the third, not guilty. Jury found ward, Cro. El. both issues for the plt., and several damages against the two, & M. 355. and held ill; for it is one joint entire offence by the plt's. action, and when all are found guilty, the damages must be entire; so far there is no doubt; but added if trespass be against divers, and one is found guilty of part and the others of all, there may be several damages; this may be doubted, espe CH. 28. 4 Mass. R. 419, Kennebec proprie tors v. Boulton & 9 oth ers. cially on joint pleas, and especially if those guilty of all, are punished for all. Remark-the rule, on the whole, is, if the jury find but one trespass, it is entire, however committed, and there can be but one satisfaction, and that entire. Secus if several trespasses be found. 3. Trespass, quare clausum fregit, and cutting down the plts'. trees; five defts. were defaulted, and the other five pleaded severally not guilty, issue joined. Proved all the defts. were in the plts'. close at the same time, cutting down their trees, and making them into shingles, which they carried away. But the five defts. defaulted, formed a company by themselves, and acted for their own use separately. Four others formed another company in like manner, and acted separately. One was associated with a third party, acting separately in like manner; he only of that party was sued. Damages assessed jointly, against the five for their trespass. So against the four for their trespass. And against the one for the third trespass. All found guilty. Five who pleaded, moved for a new trial &c. Joint costs against all. And the court said the law is well settled "when the trespass is found by the jury to be committed sev¬ erally, by the defts., who plead severally, the damages ought to be severed; but if the trespass be joint, the damages must be jointly assessed, although the defts. plead severally." Ammonett v. Harris & Turpin, 1 Hen. & Mun. 438, 499. Ammonett brought trespass of assault and battery against twelve defts. jointly, and process was served on four, two defts. and two others; the other two, C. and L., appeared and pleaded not guilty. The jury found them guilty in general terms, and assessed damages jointly, the plt., by order of court, released a part to the two defts., saying nothing as to the others, and took judgment for the residue of the damages assessed and therefor execution ordered; then the plt. proceeded against Harris and Turpin, other two defts., and held he was barred by said judgment, being one entire satisfaction for one entire trespass; but the court seem to think if he had not taken said judgment he might have proceeded for additional damages against others of the defts., and take final judgment de melioribus damnis against any one, or for any one sum assessed-agreed as to the nolle prosequi, as in Rodney v. Strode. The observation appears correct, for until the plt. takes judgment, he is not satisfied or barred; and all the numerous cases, English and American, are governed as to joint or several damages by one distinction; that is, if but one entire trespass is found or appears, there can be but one satisfaction, and that one entire sum in damages; but several trespasses as to time, place, or otherwise, and one deft. committed one, and another another |