DAM. A construction of wood, stone, or other materials, made across a
stream of water for the purpose of confining it; a mole.
2. The owner of a stream not navigable, may erect a dam across it, and employ
the water in any reasonable manner, either for his use or pleasure, so as not to
destroy or render useless, materially diminish, or affect the application of the
water by the proprietors below on the stream. He must not shut the gates of his
dams and detain the water unreasonably, nor let it off in unusual quantities to
the annoyance of his neighbors. 4 Dall. 211; 3 Caines, 207; 13 Mass. 420; 3
Pick, 268; 2 N. H. Rep. 532; 17 John. 306; 3 John. Ch. Rep. 282; 3 Rawle, 256; 2
Conn. Rep. 584; 5 Pick. 199; 20 John. 90; 1 Pick. 180; 4 Id. 460; 2 Binn. 475;
14 Srrg. & Rawle, 71; Id. 9; 13 John. 212; 1 McCord, 580; 3 N. H. Rep. 321;
1 Halst. R. 1; 3 Kents Com. 354.
3. When one side of the stream is owned by one person and the other by
another, neither, without the eonsent of the other, can build a dam which
extends beyond the filum aqua, thread of the river, without committing a
trespass. Cro. Eliz. 269; 12 Mass. 211; Ang. on W. C. 14, 104, 141; vide Lois
des Bat. P. 1, c. 3, s. 1, a. 3; Poth. Traite du Contrat de Societe, second app.
236; Hill. Ab. Index, h. t.; 7 Cowen, R. 266; 2 Watts, R. 327; 3 Rawle, R. 90;
17 Mass. R. 289; 5 Pick. R. 175; 4 Mass. R. 401. Vide Inundation.
DAMAGE, torts. The loss caused by one person to another, or to his
property, either with the design of injuring him, with negligence and
carelessness, or by inevitable accident.
2. He who has caused the damage is bound to repair it and, if he has done it
maliciousiy, he may be. compelled to pay beyond the actual loss. When damage
occurs by accident, without blame to anyone, the loss is borne by the owner of
the thing injured; as, if a horse run away with his rider, without any fault of
the latter, and injure the property of another person, the injury is the loss of
the owner of the thing. When the damage happens by the act of God, or inevitable
accident, as by tempest, earthquake or other natural cause, the loss must be
borne by the owner. Vide Com. Dig. h. t.; Sayer on Damages.
3. Pothier defines damage (dommiges et interets) to be the loss which some
one has sustained, and the gain which he has failed of making. Obl. n. 159.
DAMAGE FEASANT, torts. This is a corruption of the French words
faisant dommage, and signifies doing damage. This term is usually applied to the
injury which animals belonging to one person do upon the land of another, by
feeding there, treading down his grass, corn, or other production of the earth.
3 Bl. Com. 6; Co. Litt. 142, 161; Com. Dig. Pleader, 3 M 26. By the common law,
a distress of animals or things damage feasant is allowed. Cow. Inst. 230; Gilb.
on Distress and Replevin, 21. It was also allowed by the ancient customs of
France. 11 Toull. 402 Repertoire de Jurisprudence, Merlin, au mot Fourriere; 1
Fournel, Traits de Voisinage, au mot Abandon. Vide Animals.
DAMAGED GOODS. In the language of the customs, are goods subject to
duties, which have received some injury either in the voyage home, or while
bonded in warehouses. See Abatement, merc. law.
DAMAGES, practice. The indemnity given by law, to be recovered from a
wrong doer by the person who has sustained an injury, either in his person,
property, or relative rights, in consequence of the acts of another.
2. Damages are given either for breaches of contracts, or for tortious
3. Damages for breach of contract may be given, for example, for the
non-performance of a written or verbal agreement; or of a covenant to do or not
to do a particular thing.
4. As to the measure of damages the general rule is that the delinquent shall
answer for all the injury which results from the immediate and direct breach of
his agreement, but not from secondary and remote consequences.
5. In cases of an eviction, on covenant of seisin and warranty, the rule
seems to be to allow the consideration money, withinterest and costs. 6 Watts
& Serg. 527; 2 Dev. R. 30; 3 Brev. R. 458. See 7 Shepl. 260; 4 Dev. 46. But
in Massachusetts, on the covenant of warranty, the measure of damages is the
value of the land at the time of eviction. 4 Kent's Com. 462, 3, and the cases
there cited; 3 Mass. 523; 4 Mass. 108; 1 Bay, 19, 265; 3 Desaus. Eq. R. 247; 4
Penn. St. R. 168.
6. In estimating the measure of damages sustained in consequence of the acts
of a common carrier, it frequently becomes a question whether the value of the
goods at the place of embarkation or the port of destination is the rule to
establish the damages sustained. It has been ruled that the value at the port of
destination is the proper criterion. 12 S. & R. 186;. 8 John. R. 213; 10
John. R. 1; 14 John. R. 170; 15 John. R. 24. But contrary decisions have taken
place. 3 Caines, R. 219 4 Hayw. R. 112; and see 4 Mass. R. 115; 1 T. R. 31; 4 T.
7. Damages for tortious acts are given for acts against the person, as an
assault and battery against the reputation, as libels and slander, against the
property, as trespass, when force is used; or for the consequential acts of the
tort-feasor, as, when a man, in consequence of building a dam on his own
premises, overflows his neighbor's land; or against the relative rights of the
party injured, as for criminal conversation with his wife.
8. No settled rule or line of distinction can be marked out when a
possibility of damages shall be accounted too remote to entitle a party to claim
a recompense: each case must be ruled by its own circumstances. Ham. N. P. 40;
Kames on Eq. 73, 74. Vide 7 Vin. Ab. 247; Yelv. 45, a; Id. 176, a; Bac. Ab. h.
t.; 1 Lilly's Reg. 525; Domat, liv. 3, t. 5, s. 2, n. 4; Toull. liv. 3, n. 286;
2 Saund. 107, note; 1 Rawle's Rep. 27; Coop. Just. 606; Com. Dig. 11. t.; Bouv.
Inst. Index, h. t. See, Cause; Remote.
9. Damages for torts are either compensatory or vindictive. By compensatory
damages is meant such as are given morely to recompense a party who has
sustained a loss in consequence of the acts of the defendant, and where there
are no circumstances to aggravate the act, for the purpose of compensating the
plaintiff for his loss; as, for example, Where the defendant had caused to be
seized, property of A for the debt of B, when such property was out of A's
possession, and there appeared reason to believe it was B's. Vindictive damages
are such as are given against a defendant, who, in addition to the trespass, has
been guilty of acts of outrage and wrong which cannot well be measured by a
compensation in money; as, for example, where the defendant went to A's bouse,
and with insult and outrage seized upon A's property, for a debt due by B, and
carried it away, leaving A's family in distress. Sedgw. on Dam. 39; 2 Greenl.
Ev. §253; 1 GIllis. 483; 12 Conn. 580; 2 M. & S. 77; 4 S. & R. 19; 5
Watts, 375; 5 Watts & S. 524; 1 P. S. R. 190, 197.
10. In cases of loss of which have been insured from maritime dangers, when
an adjustment is made, the damages are settled by valuing the property, not
according to prime cost, but at the price at which it may be sold at the time of
settlling the average. Marsh. Inst. B. 1, c. 14, s. 2, p. 621. See Adjustment;
DAMAGES, EXCESSIVE. Such damages as are unreasonably great, and not
warranted by law.
2. The damages are excessive in the following cases: 1. When they are
gre-ater than is demanded by the writ and declaration. 6 Call 85; 7 Wend. 330.
2. When they are greater than is authorized by the rules and principles of law,
as in the case of actions upon contracts, or for torts done to property, the
value of which may be ascertained by evidence. 4 Mass. 14; 5 Mass. 435; 6 Halst.
3. But in actions for torts to the person or reputation of the plaintiff, the
damages will not be considered excessive unless they are outrageous. 2 A. K.
Marsh 365; Hard. 586; 3 Dana, 464; 2 Pick. 113; 7 Pick. 82; 9 John. 45; 10 John.
443; 4 Mass. 1; 9 Pick. 11; 2 Penn. 578.
4. When the damages are excessive, a new trial will be granted on that
DAMAGES INADEQUATE. Such as are unreasonably low, and less than is
required by law.
2. Damages are inadequate, when the plaintiff sues for a breach of contract,
and the damages given are less than the amount proved. 9 Pick. 11.
3. In actions for torts, the smallness of damages cannot be considered by the
court. 3 Bibb, 34. See 11 Mass. 150.
4. In a proper case, a new trial will be granted on the ground of inadequate
DAMAGES ON BILLS OF EXCHANGE, contracts. A penalty affixed by law to
the non-payment of a bill of exchange when it is not paid at maturity, which the
parties to it are obliged to pay to the holder.
2. The discordant and shifting regulaaions on this subject which have been
enacted in the several states, render it almost impossible to give a correct
view of this subject. The drawer of a bill of exchange may limit the amount of
damages by making a memorandum in the bill, that they shall be a definite sum;
as, for example, "In case of non-acceptance or non-payment, reexchange and
expenses not to exceed ___________ dollars. 1 Bouv. Inst. n. 1133. The following
abstract of the laws of several of the United States, will be acceptable to the
3. - Alabama. 1. When drawn on a person in the United States. By the Act of
January 15, 1828, the damages on a protested bill of exchange drawn on a person,
either in this or any other of the United States, are ten per cent. By the Act
of December 21, 1832, the damages on such bills drawn on any person in this
state, or upon any person payable in New Orleans, and purchased by the Bank of
Alabama or its branches, are five per cent.
4. - 2. Damages on protested bills drawn on on person out of the United
States are twenty per cent.
5. - Arkansus. 1. It is provided by the Act of February 28, 1838, s. 7, Ark.
Rev. Stat. 150, that "every bill of exchange expressed to be for value received,
drawn or negotiated within this state, payable after date, to order or bearer,
which shall be duly presented for acceptance or payment, and protested for
non-acceptance or non-payment, shall be subject to damages in the following
cases: first, if the bill have been drawn on any person at any place within this
state, at the rate of two per centum on the principal sum specified in the bill;
second, if the bill shall be drawn on any person, and payable in any of the
states of Alabama, Louisiana, Mississippi, Tennessee, Kentucky, Ohio, Indiana,
Illinois, and Missouri, or any point on the Ohio river, at the rate of four per
centum on the principal sum in such bill specified: third, if the bill shall
have been drawn on auy person, and payable at any place within the Iimits of the
United States, not hereinbefore expressed, at the rate of five per centum on the
principal sum specified in the bill: fourth, if the bill shall have been drawn
on any person, and payable at any point or place beyond the limits of the United
States, at the rate of ten per centum on the sum specified in the bill.
6. - 2. And by the 8th section of the same act, if any bill of exchange
expressed to be for value received, and made payable to order or bearer, shall
be drawn on any person at any place within this state, and accepted and
protested for non-payment, there shall be allowed and paid to the holder, by the
acceptor, damages in the following cases: first, if the bill be drawn by any
person at any place within this sate, at the rate of two per centum on the
principal sum therein specified: second, if the bill be drawn at any place
without this state, but within the limits of the United States, at teh rate of
six per centum on the sum therein specified: third, if the bill be drawn on any
person at any place without the limites of the United Sates, at the rate of ten
per centum on the sum therein specified. And, by sect 9, in addition to the
damages allowed inthe two preceding sections to the holder of any bill of
exchange protested for non-payment or nonacceptance, he shall be entitled to
costs of protest, and interest at the rate of ten per centum per annum, on the
amount specified in the bill, from the date of teh protest until the amount of
the bill shall be paid."
7. - Connecticut. 1. When drawn on another place in the United States. When
drawn upon persons in the city of New York, two per cent. When in other parts of
the state of New York, or the New England states (other than this,) New Jersey,
Pennsylvania, Delaware, maryland, Virginia, or the District of Columbia, three
per cent. When on persons in North or South Carolina, Georgia, or Ohio, five per
cent. On other states, territories or districts, in the United States, eight per
cent, on the principal sum in each case, with interest on the amount of such
sum, with the damage after notice and demand. Stat. tit. 71, Notes and Bills,
413, 414. When drawn on persons residing in Connecticut no damages are
8. - 2. When the bill is drawn on person out of the United States, twenty per
cent is said to be the amount which ought reasonably to be allowed. Swift's Ev.
336. There is no statutory provision on the subject.
9. - Delaware. If any person shall draw or endorse any bill of exchange upon
any person in Europe, or beyond seas, and the same shall be returned back
unpaid, with a legal protest, the drawer there and all others concerned shall
pay and discharge the contents of the said bill, together with twenty per cent
advance f or the damage thereof; and so proportionably for a greater or less
sum, in the sam specie as the same bill was drawn, or current money of this
government equivalent to that which was first paid to the drawer or
10. - Georgia. 1. Bills on persons in the United States. First, in the state.
No damages are allonved on protested bills of exchange drawn in the state, on a
person in the state, except bank bills, on which the damages are ten per cent
for refusal to pay in specie. 4 Laws of Geo. 75. Secondly, upon bills drawn or
negotiated in the state on persons out of the state, but within the United
States, five per cent, and interest. Act of 1823, Prince's Dig. 454; 4 Laws of
11. - 2. When drawn upon a person out of the United States, ten per cent.
damages and postage, protest and necessary expenses; also the premium, if any,
on the face of the bill; but if at a discount, the discount must be deducted.
Act of 1827, Prince's Dig. 462; 4 Laws of Geo. 221.
12. - Indiana. 1. When drawn by a person in the state on another person in
Indiana, no damages are allowed.
13. - 2. When drawn on a person in another state, territory, or district,
five per cent. 3. When drawn on a person out of the United States, ten percent.
Rev. Code, c. 13, Feb. 17, 1838.
14. - Kentucky. 1. When drawn by a person in Kentucky on a person in the
state, or in any other state, territory, or district of the United Stateg, no
damages are allowed. See, Acts, Sessions of 1820, p. 823.
15. - 2. When on a person in a foreign country, damages are given at the rate
of ten per cent. per ann. from the date of the bill until paid, but not more
than eighteen months interest to be collected. 2 Litt. 101.
16. - Louisiana. The rate of damages to be allowed and paid upon the usual
protest for non-acceptance, or for non-payment of bills of exchange, drawn or
negotiated within this state in the following cases, is as follows: on all bills
of exchange drawn on or payable in foreign countries, ten dollars upon the
hundred upon the principal sum specified in such bills; on all bills of
exchange, drawn on and payable in other states in the United States, five
dollars upon the hundred upon the principal sum specified in such bill. Act of
March 7, 1838, s. 1.
17. By the second section of the same act it is provided that such damages
shall be in lieu of interest, charge of protest, and all other charges, incurred
previous to the time of giving notice of non-acceptance or non-payment; but the
principal and damages shall bear interest thereafter.
18. By section 3, it is enacted, that if the contents of such bill be
expressed in the money of account of the United States, the amount of the
principal and of the damages herein allowed for the non-acceptance or
non-payment shall be ascertained and determined, without any reference to the
rate of exchange existing between this state and the place on which such bill
shall have been drawn, at the time of the payment, on notice of non-acceptance
or non- payment.
19. - Maine. 1. When drawn payable in the United States. The damages in
addition to the interest are as follows: if for one hundred dollars or more, and
drawn, accepted, or endorsed in the state, at a place, seventy-five miles
distant from the place where drawn, one per cent.; if, for any sum drawn,
accepted, and endorsed in this state, and payable in New Hampshire, Vermont,
Connecticut, Rhode Island, or New York, three per cent; if payable in New
Jersey, Pennsylvania, Delaware, Maryland, Virginia, South Carolina, Georgia, or
the District of Columbia, six per cent.; if payable in any other state, nine per
cent. Rev. St. tit. 10 c. 115, §§110, 111.
20. - 2. Out of the United States, no statutory provision. It is the usage to
allow the holder of the bill the money for which it was drawn, reduced to the
currency of the state, at par, and also the charges of protest with American
interest upon those sums from the time when the bill should have been paid and
the further sum of one-tenth of the money for which the bill was drawn, with
interest upon it from the time payment of the dishonored bill was demanded of
the drawer. But nothing has been allowed for re-exchange, whether it is below or
above par. Per Parsons, Ch. J. 6 Mass. 157, 161 see 6 Mass. 162.
21. Maryland. 1. No damages are allowed when the bill is drawn in the state
on another person in Maryland.
22. - 2. When it is drawn on any "person, company, or society, or corporation
in any other of the United States," eight per cent. damages on the amount of the
bill are allowed, and an amount to purchase another bill, at the current
exchange, and interest and losses of protest.
24. - 3. If the bill be drawn on a "foreign country," fifteen per cent.
damages are allowed, and the expense of purchasing a new bill as above, besides
interest and costs of protest. See Act of 1785, c. 88.
25. - Michigan. 1. When a bill is drawn in the state on a person in the
state, no damages are allowed.
26. - 2. When drawn or endorsed within the state and payable out of it,
within the United States, the rule is as follows: in addition to the contents of
the bill, with interest and costs, if payable within the states of Wisconsin,
Illinois, Indiana, Ohio, and New York, three per cent. on the contents of the
bill if payable within the states of Missouri, Kentucky, Maine, New Hampshire,
Vermont, Massachusetts, Rhode Island, Connecticut, New Jersey, Pennsylvania,
Delaware, Maryland, Virginia, or the District of Columbia, five per centum; if
payable elsewhere in the United States, out of Michigan, ten per cent. Rev. St.
156, S. 10.
27. - 3. When the bill is drawn within this state, and payable out of the
United States, the party liable must pay the same at the current rate of
exchange at the time of demand of payment, and damages at the rate of five per
cent. on the contents thereof, together with interest on the said contents,
which must be computed, from the date of the protest, and are in full of all
damages and charges and expenses. Rev. Stat. 156, s. 9.
28. - Mississippi. 1. When drawn on a person in the state, five per cent.
damages are allowed. How. & Hutch. 376, ch. 35, s. 20, L. 1827; How. Rep. 3.
29. - 2. When drawn on a person in another state or territory, no damages are
given. Id. 3. When drawn on a person out of the United States, ten per cent.
damages are given, and all charges incideutal thereto, with lawful interest.
How. & Hutch. 376, ch. 35, s. 19, L. 1837.
30. - Missouri. 1. When drawn on a person within the state, four per cent.
damages on the sum specified in the bill are given. Rev. Code, 1835, §8, cl. 1,
31. - 2. When on another state or territory, ten per cent. Rev. Code, 1835,
§8, cl. 2, p. 120. 3. When on a person out of the Unted States, twenty per cent.
Rev. Code, 1835, §8, cl. 3, p. 120.
32. - New York. By the Revised Statutes, Laws of N. Y. sess. 42, ch. 34, it
is provided that upon bills drawn or negotiated within the state upon any
person, at any place within the six states east of New York, or in New Jersey,
Pennsylvania, Ohio, Delaware, Maryland, Virginia, or the District of Columbia,
the damages to be allowed and paid upon the usual protest for non-acceptance or
non-payment, to the holder of the bill, as purchase thereof, or of some interest
therin, for a valuable consideration, shall be three per cent. upon the
principal sum specified in the bill; and upon any person at any place within the
states of North Carolina, South Carolina, Georgia, Kentucky, and Tennessee, five
percent; and upon any person in any other state or territory of the United
States, or at any other place on, or adjacent to, this continent, and north of
the equator, or in any British or foreign possessions in the West Indies, or
elsewhere in the Western Atlantic Ocean, or in Europe, ten per cent. The damages
are to be in lieu of interest, charges of protest, and all other charges
incurred previous to, and at the time of, giving notice of non-acceptance or
non-payment. But the holder will be entitled to demand and recover interest upon
the aggregate amount of the principal sum specified in the bill, and the damages
from time of notice of the protest for non-acceptance, or notice of a demand and
protest for non-payment. If the contents of the bill be expressed in the money
of account of the United States, the amount due thereon, and the damages allowed
for the non-payment, are to be ascertained and determined, without reference to
the rate of exchange existing between New York and the place on which the bill
is drawn. But if the contents of the bills be expressed in the money of account
or currency of any foreign. country, then the amount due, exclusive of the
damages, is to be ascertained and determined by the rate of exchange, or the
value of such foreign currency, at the time of the demand of payment.
33. - Pennsylvania. The Act of March 30, 1821, entitled an act concerning
bills of exchange, enacts, that, §1, "whenever any bill of exchange hereafter be
drawn and endorsed within this commonwealth, upon any person or persons, or body
corporate, of, or in any other state, territory, or place, shall be returned
unpaid with a legal protest, the person or persons to whom the same shall or may
be payable, shall be entitled to recover and receive of and from the drawer or
drawers, or the endorser or endorsers of such bill of exchange, the damages
hereinafter specified, over and above the principal sum for which such bill of
exchange shall have been drawn, and the charges of protest, together with lawful
interest on the amount of such principal sum, damages and charges of protest,
from the time at which notice of said protest shall have been given, and the
payment of said principal sum and damages, and charges of protest demanded; that
is to say, if such bill shall have been drawn upon any person or persons, or
body corporate, of, or in any of the United States or territories thereof,
excepting the state of Louisiana, five per cent. upon such principal sum; if
upon any person or persons, or body corporate, of, or in Louisiana, or of, or in
any other state or place in North America, or the islands thereof, excepting the
northwest coast of America and Mexico, or of, or in any of the West India or
Bahama Islands, ten per cent. upon such principal sum; if upon any person or
persons, or body corporate, of, or in the island of Madeira, the Canaries, the
Azores, the Cape de Verde Islands, the Spanish Main, or Mexico, fifteen per
cent. upon such principal sum; if upon any person or persons, or body corporate,
of, or in any state or place in Europe, or any of the island's thereof, twenty
per cent. upon such principal sum; if upon any person or persons, or body
corporate, of, or in any other part of the world, twenty-five per cent. upon
such principal sum.
34. - §2. "The damages, which, by this act, are to be recovered upon any bill
of exchange, shall be in lieu of interest and all other charges, except the
charges of protest, to the time when notice of the protest and demand of psyment
shall have been given and made, aforesaid; and the amount of such bill and of
the damages payable thereon, as specified in this act, shall be ascertained and
determined by the rate, of exchange, or value of the money or currency mentioned
in such bill, at the time of notice of protest and demand of payment as before
35. - Tennessee. 1. On a bill drawn or endorsed within the state upon any
person or persons, or body corporate, of, or in, any other state, territory, or
place, which shall be returned unpaid, with a legal protest, the holder shall be
entitled to the damages hereinafter specified, over and above the principal sum
for which such bill of exchange shall have been drawn, and the charge of
protest, together with lawful interest on the amount of such principal sum,
damages, and charges of protest, from the time at which notice of such protest
shall have been given, and the payment of said principal sum, damages, and
charges of protest demanded; that is to say, if such bill shall have been drawn
on any person or persons, or body corporate, of, or in any of these United
States, or the territories thereof, three per cent. upon such principal sum: if
upon any other person or persons, or body corporate, of, or in, any other state
or place in North America, bordering upon the Gulf of Mexico, or of, or in, any
of the West India Islands, fifteen per cent. upon such principal sum; if upon
any person or persons, or body corporate, of, or in, any other part of the
world, twenty per ceut. upon such principal sum.
36. - 2. The damages which, by this act, are to be recovered upon any bill of
exchange, shall be in lieu of interest and all other charges, except charges of
protest, to the time when notice of the protest and demand of payment shall have
been given and made as aforresaid. Carr. & Nich. Comp. 125; Act of 1827, c.
DAMAGES, DOUBLE or TREBLE, practice. In cases where a statute gives a
party double or treble damages, the jury are to find single damages, and the
court to enhance them, according to the statute Bro. Ab. Damages, pl. 70; 2
Inst. 416; 1 Wils. 126; 1 Mass. 155. In Sayer on Damages, p. 244, it is said,
the jury may assess the statute damages and it would seem from some of the
modern cases, that either the jury or the court may assess. Say. R. 214; 1
DAMAGES, GENERAL, torts. General damages are such as the law implies
to have accrued from the act of a tort-feasor. To call a man a thief, or commit
an assault and battery upon his person, are examples of this kind. In the first
case the law presumes that calling a man a thief must be injurious to him, with
showing that it is so. Sir W. Jones, 196; 1 Saund. 243, b. n. 5; and in the
latter case, the law imples that his person has been more or less deteriorated,
and that the injured party is not required to specify what inury he has
sustained, nor to prove it. Ham. N. P. 40; 1 Chit. Pl. 386; 2 L.R. 76; 4 Bouv.
Inst. n. 3584.
DAMAGES, LAYING, pleading. In personal and mixed actions, (but not in
penal actions, for obvious reason,) the declaration must allege, in conclusion,
that the injury is to the damage of the plaintiff; and must specify the amount
of damages. Com. Dig. Pleader, C 84; 10 Rep. 116, b.
2. In personal actions there is a distinction between actions that sound in
damages, and those that do not; but in either of these cases, it is equally the
practice to lay damages. There is, however, this difference: that, in the former
case, damages are the main object of the suit, and are, therefore, always laid
high enough to cover the whole demand; but in the latter, the liquidated debt,
or the chattel demanded, being the main object, damages are claimed in respect
of the detention only, of such debt or chattel; and are, therefore, usually laid
at a small sum. The plaintiff cannot recover greater damages than he has laid in
theconclusion of his declaration. Com. Dig.Pleader, C 84; 10 Rep. 117, a, b;
Vin. Ab. Damages, R.
3. In real actions, no damages are to be laid, because, in these, the demand
is specially for the land withheld, and damages are in no degree the object of
the suit. Steph. Pl. 426; 1 Chit. Pl. 397 to 400.
DAMAGES, LIQUIDATED, contracts. When the parties to a contract
stipulate for the payment of a certain su, as a satisfaction fixed and agreed
upon by them, for the not doing of certain things particularly mentioned in the
agreement, the sum so fixed upon is called liquidated damages. (q.v.) It differ
from a penalty, becasue the latter is a forfeiture from which the defaulting
party can be relieved. An agreement for liquidated damages can only be when
there is an engagement for the performance of certain acts, the not doing of
which would be an injury to one of the parties; or to guard against the
performance of acts which, if done, would also be injurious. In such cases an
estimate of the damages may be made by a jury, or by a previous agreement
between the parties, who may foresee the consequences of a breach of the
engagement, and stipulate accordingly. 1 H. Bl. 232; and vide 2 Bos. & Pul.
335, 350-355; 2 Bro. P. C. 431; 4 Burr, 2225; 2 T. R. 32. The civil law appears
to agree with these principles. lnst. 3, 16, 7; Toull. liv. 3, n. 809; Civil
Code of Louis. art. 1928, n. 5; Code Civil, 1152, 1153.
2. It is to be observed, that the sum fixed upon will be considered as
liquidated damages, or a penalty, according to the intent of the parties, and
the more use of the words - "penalty," &c "forfeiture," or "liquidated
damages," will not be regarded is at all decisive of the question, if the
instrument discloses, upon the whole, a different intent. 2 Story, Eq. §1318; 6
B.& C. 224; 6 Bing. 141; 6 Iredell, 186; 3 Shepl. 273; 2 Ala. 425; 8 Misso.
3. Rules have been adopted to ascertain whether such sum so agreed upon shall
be considered a penalty or liquidated damages, which will be here enumerated by
considering, first, those cases where it has been considered as a penalty - and,
secondly, where it has been considered as liquidated damages.
4. - 1. It has been treated as penalty, 1st. where the parties in the
agreement have expressly declared the sum intended as a forfeiture or a penalty,
and no other intent can be collected from the instrument. 2 B. & P, 340,
350, 630; 1 McMullan, 106; 2 Ala. 425; 5 Metc. 61; 1 H. Bl. 227; 1 Campb. 78; 7
Wheat. 14; 1 Pick. 451; 4 Pick. 179; 3 Johns. Cas. 297. 2d. Where it is doubtful
whether it was intended as a penalty or not, and a certain debt or damages, less
than the penalty, is made payable on the face of the instrument. 3 C. & P.
240; 6 Humph. 186. 3d. Where the agreement was made, evidently, for the
attainment of another objeet, to which the sum specified is wholly collateral.
11 Mass. 76; 15 Mass. 488; 1 Bro. C. C. 418. 4th. Where the agreement contains
several matters, of different degrees of importance, and yet the sum named is
payable for the breach of any, even the least. 6 Bing. 141; 5 Bing. N. C. 390; 7
Scott, 364; sed vide, 7 John. 72; 15 John. 200. 5th. Where the contract is not
under seal, and the damages are capable of being certainly known and estimated.
2 B. & Al. 704; 6 B. & C. 216; 1 M. & Malk. 41; 4 Dall. 150; 5
5. - 2. The sum agreed upon has been considered as liquidated damages, 1st.
Where the damages are uncertain, and are not capable of being ascertained by any
satisfactory and known rule. 2 T. R. 32; 1 Alc. & Nap. 389; 2 Burr, 2225; 10
Ves. 429; 3 M. & W. 545; 8 Mass. 223; 3 C. & P. 240; 7 Cowen 307; 4
Wend. 468. 2d. Where, from the tenor of the agreement, or from the nature of the
case, it appears that the parties have ascertained the amount of damages by fair
calculation and adjustment. 2 Story, Eq. Juris. §1318; 10 Mass. 459; 7 John. 72;
15 John. 200; 1 Bing. 302; 7 Conn. 291; 13 Wend. 507; 2 Greenl. Ev. §259; 11 N.
H. Rep. 234; 6 Blackf. 206; 26 Wend. 630; 17 Wend. 447; 22 Wend. 201; 7 Metc.
583; 2 Ala. 425; 2 Shepl. 250. Vide, generally, 7 Vin. Ab. 247; 16 Vin. Ab. 58;
2 W. Bl. Rep. 1190;. Coop. Just. 606; 1 Chit. Pr. 872; 2 Atk. 194; Finch. 117;
Prec. in Ch. 102; 2 Bro. P. C. 436; Fonbl. 151, 2, note; Chit. Contr. 836; 11 N.
Hamp. Rep. 234.
DAMAGES, SPECIAL, torts. Special damages are such as are in fact
sustained, and are not implied by law; these are either superadded to general
damages, arising from an act injurious in itself, as when 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 when the words become actionable only by
reason of special damage ensuing. To constitute special damage the legal and
natural consequence must arise from the tort, and not be a mere wrongful act of
a third person, or a remote consequence. 1 Camp. 58; Ham. N. P. 40; 1 Chit. Pl.
DAMAGES, SPECIAL, pleading. As distinguished from the gist of the
action, signify that special damage which is stated to result from the gist; as,
if a plaintiff in an action of trespass for breaking his close, entering his
house, and tossing his goods about, were to state that by means of the damage
done to his house, he was obliged to seek lodging elsewhere.
2. Sometimes the special damage is said to constitute the gist of the action
itself; for example, in an action wherein the plaintiff declares for slanderous
words, which of themselves are not a sufficient ground or foundation for the
suit, if any particular damage result to the plaintiff from the speaking of
them, that damage is properly said to be the gist of the action.
3. But whether special damage be the gist of the action, or only collatercal
to it, it must be particularly stated in the declaration, as the plaintiff will
not otherwise be permitted to go into evidence of it at the trial, because the
defendant cannot also be prepared to answer it. Willes, 23. See Gist.
DAMAGES, UNLIQUIDATED. The unascertained amount which is due to a
person by another for an injury to the person, property, or relative rights of
the party injured. These damages, being unknown, cannot be set off against the
claim which the tort feasor has against the party injured. 2 Dall. 237; S. C. 1
Yeates, 571; 10 Serg. & Rawle 14; 5 Serg. & Rawle 122.
DAMNIFICATION. That which causes a loss or damage to a society, or to
one who has indemnified another. For example, when a society has entered into an
obligation to pay the debt of the principal, and the principal has become bound
in a bond to indemuify the surety, the latter has suffered a damnification the
moment he becomes liable to be sued for the debt of the principal - and it has
been held in an action brought by the surety, upon a bond of indemnity, that the
terror of suit, so that the surety dare not go about his business, is a
damnification. Ow. 19; 2 Chit. R. 487; 1 Saund. 116; 8 East, 593; Cary, 26.
2. A judgment fairly obtained against a party for a cause against which
another person is bound to indemnify him, with timely notice to that person of
the bringing of the action, is admissible as evidence in an action brought
against the guarantor on the indemnity. 7 Cranch, 300, 322. See F. N. B.
Warrantia Chartae; Lib. Int. Index, Warrantia Chartae; 2 S. & R. 12, 13.
DAMNIFY. To cause damage, injury or loss.
DAMNOSA HAEREDITAS. A name given by Lord Kenyon to that species of
property of a bankrupt, which, so far from being valuable, would be a charge to
the creditors for example, a term of years, where the rent would exceed the
2. The assignees are not bound to take such property, but they must make
their election, and, having once entered into possession, they cannot afterwards
abandon the property. 7 East, R. 342; 3 Campb. 340.
DAMNUM ABSQUE INJURIA. A loss or damage without injury.
2. There are cases when the act of one man may cause a damage or loss to
another, and for which the latter has no remedy; he is then said to have
received damnum absque injuria; as, for example, if a man should set up a school
in the neighborhood of another school,and, by that means, deprive the former of
its patronage; or if a man should build a mill along side of another, and
consequently reduce his custom. 9 Pick. 59, 528.
3. Another instance may be given of the case where a man using proper care
and diligence, while excavating for a foundation, injures the adjoining house,
owing to the unsuitable materials used in such house; here the injury is damnum
4. When a man slanders another by publishing the truth, the person slandered
is said to have sustained loss without injury. Bac. Ab. Actions on the Case, C
Dane's Ab. Index, h. t.
DAMNUM FATALE, civil law. Damages caused by a fortuitous event, or
inevitable accident; damages arising from the act of God. Among these were
included losses by shipwreck, lightning, or other casualty; also losses by
pirates or by vis major, by fire, robbery, and burglary; but theft was not
numbered among these casualties.
2. In general, bailees are not liable for such damages. Story, Bailm. p.
DANE-LAGE, Eng. law. That system of laws which was maintained in
England while the Danes had possession of the country.
DANGERS OF THE SEA, mar. law. This phrase is sometimes put in bills of
lading, the master of the ship agreeing to deliver the goods therein mentioned
to the consignee, who is named, the dangers of the sea excepted. Sometimes the
phrase is "Perils of the Sea." (q. v.) See 1 Brock. R. 187.
DARREIN. A corruption of the French word "dernier," the last. It is
sometimes used as, "darrein continuance," the last continuance. When any matter
has arisen in discharge of the defendant in action, he may take advantage of it,
provided he pleads itpuis darrein continuance; for if he neglect to do so, he
waives his right. Vide article darrein continuance.
DARREIN SEISIN. The name of a plea to a writ of entry or a writ of
right. 3 Met. 175.