and actions brought under penal statutes to recover compensation for injuries.*

If a sum certain be given, by way of penalty, to the party aggrieved, he may recover not only the money, but damages for its detention. But if the penalty be given to the party suing, a common informer is not allowed damages for the detention.‡ But if double or treble damages be given by way of penalty, not even the party aggrieved can have damages for the detention; because the sum being uncertain, it is not to be considered as a debt.

Where double or treble damages are given, it has been held doubtful how the double or treble value is to be arrived at; whether the jury are to find single damages to be increased by the court, or whether they are to find double the whole amount awarded by the statute. The general and better practice would seem to be, for the jury to find single damages, and for the court to double or treble them; although it would probably be equally good for the jury to assess the augmented damages, if it appear on the record that such assessment was in fact made. But in debt for a penalty of double the value of a vessel and cargo under the embargo act of 9th January, 1808, it was held by Mr. Justice Story that the verdict of the jury must be taken to be the double value, unless the contrary appears.

We have already, under the head of interest, examined some of those statutes which give damages or interest by way of

* Fife vs. Bousfield, 6 Q. B. R., 100; and Fitzhall vs. Brooke, 6 Q. B. R., 878. + North vs. Wingate, Cro. Car., 559. Supra, 392.

North vs. Musgrave, 1 Rol. Abr., 574; Damages, P.

§ Dagge vs. Kent, Cro. J., 70. Mr. Sayer states this proposition positively; but it seems by the report that the plaintiff released his damages "because he was in doubt." The authorities are Bro, Abr. Damage, pl. 70. 5 Com. Dig. Plead., 2. § 16. 2 Roll., 54. Sayer on Damages, 242. Bennett vs. Hart, Sayer on Damages, 244. Grant vs. Astle, Doug., 723, n. 781. Lobdell vs. Inhabitants of New Bedford, 1 Mass. R.,

152.

Cross vs. The United States, 1 Gallison, 26. In Maine it has been said, that where a statute gives double damages it is wholly immaterial whether they be assessed by the court or the jury. Quinby vs. Carter, 20 Maine, 218. See, also, Warren vs. Doolittle, 5 Cow., 678.

As to double and treble damages in New York, see Hubbell vs. Rochester, 8 Cow., 115. Brown vs. Bristol, 1 Cow., 176. Livingston vs. Platner, 1 Cow., 175. Benton vs. Dale, 1 Cow., 160. Morris vs. Brush, 14 J. R., 828. Beekman vs. Chalmers, 1 Cow., 584.

damages on unsustained writs of error. Sometimes a penalty is imposed, as in Ohio, of simple cost.*

The subject of damages arising from the overflow of lands, resulting from the erection of dams, has been in many States of the Union brought very much under the control of special statutes. At common law the riparian land owner has a right to have the natural water-course kept open the whole time. But in order to give security and quiet to mill owners in several States of the Union, statutes have been passed, as in Massachusetts, to regulate the erection and maintenance of those dams, which if observed by the proprietor will secure him from any action at common law. But if the provisions of these statutes are not complied with, as where the dam is kept up at a season of the year prohibited, the mill owner shall have no benefit of the statute, but be liable as if it had not been passed to a suit at common law for the disturbance.‡

In the same State it has been held that the provisions of these statutes for the support and regulation of mills, cannot be so construed as to justify or excuse the erection of a dam in such a manner as to overflow a public highway and render it impassable; and in an action by the town against a mill owner in such a case, the plaintiffs are entitled to recover the expense incurred in repairing the road, with interest, but not the costs of an indictment for not seasonably repairing the road.]

In New York, by the general railroad act of 27th March, 1848, when the company neglects to erect fences at the sides of the road, and to construct and maintain cattle guards at road crossings, the company is liable for the death of a cow which comes on the track and is killed, without any proof of negligence on the part of the agents of the company.¶

In Massachusetts, where the lessee, on appealing from a judgment in favor of the lessor, gives the statutory bond to pay the intervening rent and damages, such damages are only the rent and interest, and cannot be construed to embrace loss of

* Brady vs. Christopher, 19 Ohio, 26.

+ Stowell vs. Flagg, 11 Mass., 364.

Johnson vs. Kuttridge, 17 Mass., 76. Hill and wife vs. Sayles, 12 Met., 142. § Commonwealth vs. Stevens, 10 Pick., 247.

Inhabitants of Andover vs. Sutton, 12 Met., 182.

Suydam vs. Moore, 8 Barb. S. C. R., 858. Waldron vs. Rensselaer & S. R. Co.,

8 Barb. S. C. R., 390.

the sale of the premises or injury to them; nor can proof be received that the occupation was worth more than the stipulated rent.*

Under the New York city mechanics' act, as it is called, intended to protect material men and laborers, for work done and materials furnished for buildings, the claimant cannot obtain a lien on unliquidated damages, which the builder has sustained by being wrongfully discharged, and thus prevented from completing his contract, but is restricted to such funds as are due and to become due for actual performance.†

Under this head, too, should be considered the subject of actions for infringement of patents. The patent act of the United States authorizes the jury in cases of infringement, to give a verdict for the actual damages sustained; and we have already had occasion to consider the question, whether counsel fees can be allowed by way of damages in actions of this class.‡ As to the damages themselves, it has been held that full damages are usually given for the patented articles which have been made and sold to be used, and not for the selling or buying or making alone. If the maker of the machine appear in truth to be ignorant of the existence of the patent, and do not intend any infringement, though this will not altogether exonerate him, it will tend to mitigate the damages.

Where a claim for damages exists against agents or officers of the United States government, and the Congress of the United States has acted on the claim, and passed a statute awarding damages for the injury done, that is a final disposition of the matter, and no further redress can be obtained from the courts of law.¶

*Bartholomew vs. Chapin, 10 Met., 1.

+ Hoyt vs. Miner, 7 Hill, 525.

Supra, 99.

§ 10 Wheat., 350. 8 McLean, 427.

Bryce vs. Dorr, 3 McLean, 588. Whittemore vs. Cutter, 1 Gallison, 429. Jones vs. Pearce, Webster's P. C., 125. Hogg vs. Emerson, 11 Howard, 587-607. See, also, Lowell vs. Lewis, 1 Mason C. C., 182.

TU. States vs. Williams, 4 McLean, 567.

See Regina vs. The Mayor, &c., of Lichfield, 15 Jur., 812; a case upon the English Municipal Corporation Act, 5 & 6 Will. 4, c. 76, where the power of the Lords of Treasury to make compensation to a party removed from office was considered.

CHAPTER XXIV.

OF DAMAGES WITH REFERENCE TO PLEADING AND
PRACTICE.

Damages, General and Special-Special Damages to be averred in the DeclarationMisjoinder of Counts and Assessment of entire Damages-Jurisdiction of the Courts of the United States with reference to Damages-Damages with regard to Costs.

THE most important remark to be made on this part of our subject, is as to the necessity of distinctly averring in the declaration the damage of which the plaintiff complains. Great nicety has been used in regard to the peculiar mode of allegation; thus, it has been doubted whether an averment was sufficiently clear and positive if preceded by the word "whereby," or "thereupon," thereupon," on the ground that the words following the "whereby" or "thereupon" could not be considered as containing an averment of matter of fact, but merely matter of conclusion or inference drawn from the matters previously alleged. But it now seems to be well settled, that where the allegation following such a word as "thereupon" or "whereby" is clearly intended as an allegation of fact, the matter is to be considered averred with sufficient directness, the word "thereupon" or "whereby❞ not being understood as showing that the proposition following such word, is intended to be stated as a consequence deducible from what precedes, but only as showing the time at which, or the occasion on which that which follows the word in question is averred to have taken place.* But if the averment is merely one of a legal liability, it is well established that such an averment being one of matter of law, will not supply the want of those allegations of fact from which alone the court could infer the law to be as stated; so that such

* Puyce vs. Belcher, 3 M. Gr. & S., 58. Brown vs. Mallett, 5 M. Gr. & S., 598.

allegation is useless when the declaration is insufficient, and superfluous when sufficient without it.

A question of more frequent occurrence is, as to the necessity of averring the particular cause and extent of any special damage for which the plaintiff claims redress.

"Damages," says Mr. Chitty,* "are either general or special. General damages are such as the law implies or presumes to have accrued from the wrong complained of. Special damages are such as really took place, and are not implied by law; and are either superadded to general damages arising from an act injurious in itself, as where some particular loss arises from the uttering of slanderous words actionable in themselves, or are such as arise from an act indifferent and not actionable in itself, but injurious only in its consequences, as where words become actionable only by reason of special damage ensuing. It does not appear necessary to state the former description of damages in the declaration; because presumptions of law are not in general to be pleaded or averred as facts. But when the law does not necessarily imply that the plaintiff sustained damage by the act complained of, it is essential to the validity of the declaration that the resulting damage should be shown with particularity; and when the damages sustained have not necessarily accrued from the act complained of, and consequently are not implied by law, then, in order to prevent the surprise on the defendant, which might otherwise ensue on the trial, the plaintiff must in general state the particular damage which he has sustained, or he will not be permitted to give evidence of it."†

So in the Queen's Bench, in an action on the case for an excessive distress, it was held that no mention being made, in the declaration, of the sale, either for damage or by way of substantive complaint, the plaintiff could only recover damages in respect to the detention of the property, and not for the sale.‡

So in New York, in an action on the case, in which the plaintiff declared against the defendant for placing a quantity of lime,

* Chitty on Pleading, vol. i., 428, cited in Dumont vs. Smith, 4 Denio, 319. Vide supra, 67 and 178.

"The damages sustained are matter of evidence, and need not be alleged; nor are they scarcely ever stated but in a general manner." Barruso vs. Madan, 2 J. R., 149.

+ See, also, Chitty on Pleading, vol. i., 870, et seq., same subject. See, also, Deforest vs. Leete, 16 J. R., 122; where held, that in an action on the covenant against incumbrances, it was not enough to aver that the premises were incumbered, but that the declaration must set out the extinguishment of the incumbrance. See also, Butler vs. Kent, 19 J. R., 228; and Arrowsmith vs. Gordon, 3 La. Ann. R., 115.

Thompson vs. Wood, 4 Q. B., 493. In Driggs vs. Dwight, 17 Wend., 71, in New York; and in Ward vs. Smith, 11 Price, 19, in England,-special damage was allowed, though not stated in the declaration. In Leland vs. Tousey, 6 Hill, 828 (New York), it was intimated that an averment of consequential damage, though too remote and ineffectual, is no ground of demurrer.