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CH. 28. the sheriff, and he neglect to serve it, the creditor can recov Art. 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 . 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. $4. Penalty, the measure of damages. This was debt on consideration agreed Providence in opposiHeld, this agreement he had incurred the liquidated by the par

223, Pierce v. an obligation by which the deft. for $1 not to run a stage between Boston and tion to the plt's. stage; penalty $290. valid, and as the deft. had violated it, penalty, the measure of the damages ties; and this was only a limited restraint on the deft's. trade or business.

10 Mass. R.

Bartlett.

14 Johns. R. 389, as to mitigating damages.

$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.

1 Johns. R. 110.

3 Dallas 302, 304, 337.

Salk 11.

3 Dallas 88, 115.-11 Co.

6, 7.-1 Hen.

& Mun. 488.
-Cro. Jam.

73, 118.-
4 Bac. Abr.

115, Saben v.

Long.

5 Burr. 2790,

Hill v. Goodchild.

§ 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 defts. jointly guilty, the jury cannot sever the damages, according to the degrees of guilt; as 1s. to one, and 40s. to another; same rule if defaulted, Stra. 422; this is the case man v.House, Slater and Goodacre, 2 Stra. 1145.-See Carth. 19, 20.--See Ch. 91, a. 8, s. 8.

2 Esp. 115, 116.-Chap

when they plead jointly, for if they sever in their pleas, and the jury find severally, different damages may be assessed. As in trespass against three defts. for taking goods and false imprisonment; House let judgment go by default, Slater demurred, and Goodacre pleaded not guilty; he was acquitted; the jury assessed damages, 1s. as to House, and £100 as to Slater, and held well. In this case it will be observed, there was no joint finding by the jury; a material circumstance. In this case were cited Lowfield v. Bancroft & al., which was an action for a malicious prosecution, and held, the jury could not assess separate damages; this case is not material for the defts'. pleas are not stated, and they pleaded jointly for any thing that appears. Also cited Stra. 79, Lane v. Santloc; pleas do not appear nor finding.

CH. 28.

Art. 7.

Hill v. Hum.

-See many

ney v. Strode

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 guil- cases cited 3 ty of the whole trespass charged, and assessed damages £20, Mod. 101, also found against the other so guilty of the whole trespass 103, and Rod→ 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, s. 3, this case.

1 Bulstr. 157,

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.
Art. 7.

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 severally, 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. 488, 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

&c., then their cases are several. So a release to one joint trespasser in assault &c. is a bar as to all; so is accord and satisfaction, though the sum received and the release be express, it shall be a bar only as to the one. Ruble v. Turner & al., 2 Hen. & Mun. 38, 49, was no seal on the instrument; the District Court also so decided in which the action was so commenced. If A, B, and C, commit a joint assault and battery on D, and he sues A alone, and gets judgment for damages, it is a bar as to all; Wilkes v. Jackson, 2 Hen. & M. 355, 361.

CH. 28.

Art. 8.

above.

§ 4. If the jury assess damages in trespass, namely, £1000 Bul. N. P. 20, against A, and £50 against B, the plt. may take judgment is the case against A only, for the £1000, for as the plt. might have sued them jointly, or severally, he may have the same election as to damages, or he may take execution against both for the greater damages.

5. To have an increase of damages in case of a maim or Bul. N. P. bad wounding, on inspection &c., the manner of the wound- 21, Cook v. ing must be stated in the declaration. See 1 Raym. 176;

Latch 225.

Beal.

§ 6. Trespass, quare clausum fregit, the plt. is not allowed Bul. N. P. to prove the dest. took a horse, as this bears a separate action; 89; Ch. 85. but in quare clausum fregit et domum fregit, the plt. may prove the deft. came into his house and defiled his daughter;

for this, as it respects the father, does not bear a separate action, but is in aggravation of damages.

v.

§7. What a penalty. A and B made an agreement in 3 Johns. Ca. writing, by which A agreed to convey to B 700 acres of land, 297, Dennis to be appraised in part payment of a farm valued at $3750. . Cummins. B contracted to sell to A, and it was agreed if either failed to perform his contract, he should forfeit and pay $2000 and damages. Held, this $2000 was a penalty, and so the parties intended.

Western

ART. 8. Damages applied to the good part of the declara- 2 Johns. R. tion. 1. As where part of a declaration states a sufficient 283, Steele v. ground of action, and a part is not actionable, the court will Island Lock intend, after a verdict, that the jury gave damages only for Nav. Com. the actionable part of the declaration. 1 Johns. R. 442. Laws, of N. And a corporation taking and using a man's land, by law is 334. liable to pay damages only for its negligent use of it.

Y. Vol. 1, p.

$2. Damages assessed for part. This was trespass for 5 Co. 35, breaking the plt's. close and taking away his fish. The dec- Flaytor's laration was good as to the close, and bad as to the fish; be- Car. 54, 239. case, Cro. cause the plt. did not state the number and kind of fish. En- Hob. 66, 70. tire damages were assessed, and judgment arrested, and the court said the plt. might have got the jury, if he had been wise, to assess separate damages, so much for breaking the close,

CH. 29.
Art. 1.

11 Co. 5, 9,
Heydon's

case. See 2
Stra. 910.-
Yelv. 67,
Cro. J. 73,
Moore 762.-
2 Hen. &

Mun. 355.-
4 Esp. R.
158.-3 Mod.
Hob. 66.-

3 Burr. 1345.

Cro. Car. 54,
Player v.
Warne & al.

6 D. & E. 199.

1 Johns. R. 507.

3 Johns. R.

and so much for taking the fish, and then the plt. should have had judgment for damages for breaking his close with costs.

§3. Where the jury must assess damages jointly, &c. Resolved when trespass is brought against several defts., and they plead not guilty, or several issues, and the jury find for the plt. in all, the jurors cannot assess several damages against the defts., because all is but one trespass, and made joint by the plt. by his writ and declaration. And if one give the blow, and do in fact more injury than another, yet all coming to do an unlawful act, and of one party, the act of one is the act of all of the same party present. But in trespass against two, if the jury find one guilty at one time and another at another time, they may assess several damages. So if the defts. appear at different times and plead, there can be damages but once. Trespass against A and B; A makes default, a writ of inquiry of damages must be awarded against him, and issued, if there be no verdict against B; but if one against B, then A shall be contributory to the damages assessed against B. Quære of contribution in torts.

4. Trespass-defts. defaulted-plt. sued out several writs of enquiry-set aside on his motion because he could not have several damages.

§ 5. If a clerk make a mistake in the assessment of damages, the court will order him to make another assessment.

6. After default, where the judges have power to assess 153, M'Col- the damages, they may receive an assessment by the jury, though not in a forinal verdict, if assessed in the presence of the court.

lum v. Barker.

6 Cranch 233,

$7. Ad quod damnum. The Circuit Court in the District of Curtis' case. Columbia quashed an inquisition in the nature of a writ ad quod damnum. Held, an appeal lay to the Supreme Court, and that the Circuit Court could not so quash.

CHAPTER XXIX.

See Assets.

ASSUMPSIT. EXECUTORS AND ADMINISTRATORS, AND ACTIONS
BY AND AGAINST THEM, AND GENERAL PRINCIPLES.

ART. 1. 1. It is now a settled principle, that whenever assumpsit lies against the deceased at the time of his death, or he is then bound in any promise expressed or implied,

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