We have seen that by a late statute interest is in many cases recoverable as damages (i).

Damages may and ought to be given for a loss the plaintiff may probably sustain in futuro by the breach of the contract (k).

Damages, how assessed:

Where the parties have not by the contract afforded the criterion of damages, by stipulating for a liquidated sum to be paid as such, it is, in general, entirely the province of the jury to assess the amount (7), with reference to all the circumstances of the case. When a cause goes to trial upon issue joined, the sum to be recovered is always ascertained by the jury (m); but when the defendant suffers judgment by default, there are many instances in which the intervention of a jury for this purpose is dispensed with. For, although a writ of inquiry is, in general, awarded upon a judgment by default, or on demurrer, yet this is a mere inquest of office, to inform the conscience of the court; who, if they please, may themselves assess the damages, or direct them to be assessed by the proper officer (n).

Therefore, to avoid expense and delay, it is the practice in actions upon bills of exchange and promissory notes, instead of executing a writ of inquiry, upon obtaining judgment by default, or upon demurrer, to apply to the court in term time, or a judge in vacation, upon an affidavit of the nature of the action, &c., for a rule or summons to show cause why it should not be referred to the proper officer of the court, to see what is due for principal and interest, and to tax the plaintiff his costs, and why final judgment should not be signed for that sum, without executing a writ of inquiry; upon which the court or judge will make an

(i) Ante, 503, and note (1).
(k) Howell v. Young, 5 B. & C.

168.

(1) The 3 & 4 W. 4, c. 42, s. 21, provides, that in all personal actions (except certain actions for torts), the defendant may, by leave of the court or a judge, pay a sum into court by way of compensation or amends, subject to orders of Court to be made by the judges. See the regulation as to pleading payment of a debt into court in ordinary cases, Rules on Pl. Hilary Term, 1834.

(m) When the omission of the jury, upon the trial of an issue, to assess the damages, may be supplied by a

writ of inquiry; Pilford's case, 10 Co. 118; Herbert v. Waters, Carth. 362; Kynaston v. The Mayor of Shrewsbury, Stra. 1052; Clement v. Lewis, 3 B. & B. 297; Tidd, 8th ed. 621, 622; 9th ed. 574, 896.

(n) Tidd, 8th ed. 617; 9th ed. 573; cites 2 Saund. 107 (2); Hewitt v. Mantell, 2 Wils. 372, 374; Bruce v. Rawlins, 3 id. 61, 62; Thellusson v. Fletcher, 1 Dougl. 316; Rashleigh v. Salmon, 1 H. Bla. 252, 529, 542; Shepherd v. Charter, 4 T. R. 275; Blackmore v. Flemyng, 7 id. 446; Gould v. Hammersly, 4 Taunt. 148; Brill v. Neele, 1 Chit. R. 621, note.

absolute rule or order, on an affidavit of service, unless good cause be shown to the contrary (o).

The courts have, however, cautiously confined this practice to cases in which their officers can evidently do as complete justice between the parties, by calculating from the instrument itself the amount due, as could be effected by a jury. Where the quantum of damages may not depend entirely upon figures, a writ of inquiry is necessary; as in assumpsit upon an agreement, although the action be brought for the recovery of a certain sum due thereon (p); or in an action of assumpsit upon a foreign judgment (q); or a foreign bill of exchange (r).

Excessive or too small Damages

If the jury assess excessive damages, the court will grant a new trial. But there is always a disinclination in the court to listen to applications of this nature; and the damages ought not to be weighed in a nice balance, but must be such as appear at first blush to be outrageous, and indicate passion or partiality in the jury (s).

The courts, in the exercise of their discretion upon this subject, will not grant a new trial to reduce the damages, although the jury have given damages which the plaintiff's declaration did not strictly enable him to give in evidence, but which, upon a declaration differently framed, he could recover; as to allow a new trial on that ground would only have the effect of putting both parties to further expense, when the result would be the same (t).

The defendant, who had contracted for jewellery, was to return it in a twelve month; and if he omitted to do so, was to pay for it a certain sum, with interest. The plaintiff sued for the amount,

(0) Shepherd v. Charter, 4 T. R. 275; Rashleigh v. Salmon, 1 H. Bla. 252, 529, 541; Goldsmid v. Taite, 2 B. & P. 55; Tidd, 8th ed, 618; 9th ed. 571, 572, 870. A similar application will be successful in actions of covenant and debt upon deeds or instruments, under seal, for the payment of a specific sum; see id.

(p) Tidd, 8th. ed. 619; 9th ed. 571, 572, 870.

(q) Messin v. Lord Massareene, 4 T. R. 493; Hunter v. Bowes, cited 1 M. & Sel. 173.

(r) Maunsell v. Lord Massareene, 5 T. R. 87.

(s) See the cases, Tidd, 8th ed. 940; 9th ed. 582, 907, 997; Williams v. Reeves, 1 Chitty R. 729 a; Tripp v. Thomas, 3 B. & C. 427; 5 D. & R. 276, S. C. In an action for breach of promise of marriage, new trial on ground of excessive damages refused, unless a very strong case; Gough v. Farr, 1 Y. & J. 477; 3 C. & P. 631, S. C. at N. P.

(t) Mayfield v. Wadsley, 3 B. & C. 357; 5 D. & R. 224, S. C.

the goods having been retained; but the only counts in the declaration, applicable to the case, were a count for goods sold, and a count for interest on money due and forborne. The jury having found a verdict for the sum demanded, with interest, the court refused to set aside the verdict, or to interfere (u).

It seems to be unusual to grant a new trial on account of the smallness of the damages, especially where the damages are uncertain; although it would probably be granted in an action upon a demand which is obviously certain, as upon a promissory note, if there be not the slightest pretence for giving the plaintiff less than the full amount (r). And the courts have sometimes set aside inquisitions for smallness of damages (y).

Statement of the Damages in the declaration:

In order to recover special damages, in the instances above enumerated, it is necessary that they be explicitly stated in the declaration, so that the defendant may be prepared to dispute the facts. But damages, which necessarily, and by implication of law, ensue from the non-performance of the contract, need not be expressly detailed, and are recoverable under the common conclusion of the declaration (~).

The jury cannot give higher damages than the amount laid in the declaration; and if a judgment be entered for the excess, it is error (a). The plaintiff may, however, cure a finding for the excess, by entering a remittitur of the surplus before judgment (b); or he may amend his declaration, and have a new trial (c). A mere miscalculation on the face of the record, of the total or aggregate of the damages and costs recovered, will not avoid the judgment (d).

(u) Harrison v. Allen, 2 Bing. 4. (x) Tidd, 8th ed. 940, and note (1); 9th ed. 909.

(y) Tidd, 9th ed. 909; Neale v. Willie, 3 B. & C. 533; 5 D. & R. 442, S. C. ante, 684; Lethbridge v. Mytton, ante, 683.

(z) See Boorman v. Nash, 9 B. & C. 152, per Lord Tenterden, C. J.

(a) Cheveley v. Morris, 2 Bla. R.

1300.

(b) Persival v. Spencer, Yelv. 45; Wray v. Lister, 2 Stra. 1110, 1171.

(c) Tidd, 8th ed. 753, 754, 927; 9th ed. 896, and note (k).

(d) Dunn v. Crump, 3 B. & B. 300, 307; 7 Moore, 137, S. C.

ADDENDA ET CORRIGENDA.

Page 6. When the heir or executor should sue or be sued in case of contracts relating to freehold property, see addenda to 246.

P. 6, 5th line from the bottom, dele “if he were a trader subject to the bankrupt law:"-for by 3 & 4 W. 4, c. 104, to which refer in note (b), real property is in equity subject to the payment of simple contract debts, although the debtor were not a trader.

P. 6, note (t), line 14, instead of " 1 M. & R. 106," read "1 Mood. & Rob. N. P. R. 106."

P. 7, n. (c), after "W. 4." add "ch. 47."

n. (d), add " 3 & 4 W. 4, c. 104."

n. (e), after judgments, add “which are provided for by 3 & 4 W. 4, c. 27, s. 40. The statute provides, that after 31 December 1833, 66 no action, suit, or other proceedings, shall be brought to recover any sum of money secured by any mortgage, judgment, or lien, or otherwise charged upon or payable out of any land or rent, at law or in equity, or any legacy, but within twenty years next after a present right to receive the same shall have accrued to some person capable of giving a discharge for or release of the same, unless in the mean time some part of the principal money, or some interest thereon, shall have been paid, or some acknowledgment of the right thereto shall have been given in writing, signed by the person by whom the same shall be payable, or his agent, to the person entitled thereto, or his agent; and in such case no such action or suit or proceeding shall be brought but within twenty years after such payment or acknowledgment, or the last of such payments or acknowledgments, if more than one was given."

P. 9, n. (o), add after "see post."-" 432, note (i); and Williams v. Carwardine, 5 C. & P. 566; 4 B. & Ad. 621, S. C. It was there held that a public advertisement by A. that whoever would give information which would lead to the discovery of the murder of B., should on conviction receive a reward of 201., amounted to a contract with any person who gave the information; and that C., who gave it, was entitled to the money, although she was led to inform not by the proffered reward, but by other motives."

of the sentence "

post, 320.

P. 15, 1. 11, instead of " may bind," read “ may not bind." Add at the end And in case of a guarantee for goods to be sold to a third person, the creditor need not be bound to supply, to render the guarantee valid; post, 398."

P. 15, 16, add "In Nurse v. Wills, 4 B. & Ad. 739, a declaration by husband and wife stated, that by agreement between the plaintiffs and the defendant, reciting that one J. L. had been arrested at the suit of the plaintiffs, that the defendant had become bail to the sheriff, that the bail had been forfeited, and that J. L. had given a cognovit for the debt and costs, it was understood and agreed between the plaintiffs and defendant, and the defendant undertook and promised, in consideration that the plaintiffs would not enter up judgment, or sue out execution against J. L. until a certain day, that he, the defendant, would render J. L. on that day, or in default, pay the debt and costs. Averment,

Y Y

that the plaintiffs had not entered up judgment, or sued out execution against J. L. before the day. Breach, that the defendant did not render J. L. on the day, or pay the debt and costs. It was held, on motion in arrest of judgment, after verdict for the plaintiffs: first, that, as the agreement was stated to be with the plaintiffs, the promise must be taken, after verdict, to have been made to them; secondly, that it sufficiently appeared that the wife had a joint interest, because the recital in the agreement of a cognovit by J. L. to all the plaintiffs was an admission by the defendant of such joint interest; thirdly, that, though the agreement by the wife was void, it might be rejected as surplusage, and that the count would then be good, as stating a promise to pay the debt and costs to the plaintiffs, in consideration that they would not enter up judgment, or sue out execution until a given day."

66

P. 18, 2nd paragraph, add references to post, 360, 457, 506."

P. 21, last sentence:-Custom of the country:-See Roberts v. Barker, 1 C. & M. 808. There a tenant held under the terms of an expired lease, by which it was stipulated that the tenants on quitting the farm should not sell or take away any of the manure in the fold, but should leave it to be expended on the land by the landlord or his succeeding tenant. The lease contained no stipulation as to the tenant being entitled to payment for such manure. By the custom of the country, the tenant would have been bound not to sell or take away the manure in the fold, but to leave it to be expended on the land by the landlord or his succeeding tenant, and would have been entitled to be paid for the same. It was held, that, as an express stipulation had been made on the subject, the custom was excluded, and that the tenant was not entitled to be paid for the manure. See p. 294. 89.

P. 30. As to forbearance by husband and wife. See Nurse v. Wills, 4 B. & Ad. 739; addenda to pages 15 and 16.

P. 36, n. (a), add a reference to page 510.

P. 40. Moral obligation :-add "But'an insolvent debtor's new promise is under the act not binding. See post. 675; and Evans v. Williams, 1 C. & Mee. 30. In that case the defendant and his surety signed a promissory note; defendant was afterwards discharged under the insolvent act. The payee applied to the surety for payment; whereupon the defendant, to prevent the surety being sued, joined him in a new note. It was held, in an action by the payee, that he could not recover on this note against the defendant, as it was a new contract for the old debt, though the new consideration of forbearance to the surety was added."

P. 41, l. 2, add " See another instance, post. 510.”

P. 44, As to a gift; add "post. 48."

P. 48, line 14 from bottom, add a reference to "ante, p. 44."

P. 51, 1. 14, add a reference to "post. 568."

P. 52, 1. 2, add "See Nurse v. Wills, 4 B. & Ad. 739;" cited supra, addenda to pages 15 and 16."

P. 59, line 7 from bottom, dele the stop, and the remainder of the sentence after "party to be charged," and substitute "party to be charged therewith, or some other person by him thereunto lawfully authorised."

P. 60, n. (x), add "A subsequent recognition of the agent's act suffices, post. 177."

ante, p. 52."

P. 61, 1. 13, add a reference to "
P. 64, 1. 11, add a reference to "post, 520—1.”

P. 72, n. (o), l. 8, read But for And; and line 5 from the bottom, for "the latter may be sued, &c." read " the latter cannot merely by force of these words be sued, &c." And in note (o), refer to Wolveridge v. Steward, in error, 1 C. & M. 644, as overruling the case in C. P. When case lies on the implied indemnity, see post. addenda to 399.

P. 76, line 4 from bottom. See Mackenzie v. Macleod, 10 Bing. 385. In that case it appeared, that by the law of Scotland the tenant is liable to his landlord, if premises demised are burnt down by the negligence or misconduct