performance of certain work. It appeared that the defendant had brought an action for the price, which the plaintiff had settled by paying the full amount. The defendant contended that as the plaintiff might have set up the negligent performance of the work in that action, he could not now maintain this action. Hannen, J., after citing the language of Parke, B., in Mondel v. Steel, (*) said: "The particular point decided in Mondel v. Steel was that a person who has in fact obtained, in an action brought against him, an abatement of the price of work done, by reason of a breach of contract in its execution, is not precluded from suing for special damage resulting from the breach of contract; but it leaves undecided the question whether he was bound to obtain the abatement in the action in which he was a defendant, or might recover it as damages in a cross-action. . . . . It is clear that before any action is brought for the price of an article sold with a warranty, or of work to be performed according to contract, the person to whom the article is sold, or for whom the work is done, may pay the full price without prejudice to his right to sue for the breach of warranty or contract, and to recover as damages the difference between the real value of the chattels or work and what it would have been if the warranty or contract had not Is there any reason why he should be deprived of this right by the mere fact of his opponent having commenced an action for the price? We think that there is none, and that there are some strong reasons wny he should not." been broken. The judge then said that the defendant might not, at the time of action, be able to ascertain the amount of damage sustained; that instead of avoiding circuity of action, by compelling the defendant to allege his damages by way of defense, it would only complicate litigation, as the defendant could not show consequential damages by way of defense, but could bring another action to recover these, and that it would be difficult to (") 8 M. & W. 858. discriminate between the items to be allowed in each action. "We have, though not without some doubt, come to the conclusion that the better rule is, that the defendant has the option, if he pleases, to divide the cause of action, and use it in diminution of damages, in which case, as Parke, B., says, he is concluded to the extent to which he obtained, or was capable of obtaining, a reduction; or he may, as in the present case, claim no reduction at all, and afterwards sue for his entire cause of action." * So where suit was brought for breach of warranty in a sale of a horse, it was shown that the plaintiff had given his note for the price of the same horse, and paid it after suit, and it was objected that the evidence of breach of warranty should have been urged in that suit. The court held that the evidence would have been admissible, but that the now plaintiff was not bound to use it, and that the fact of his not having availed himself of it was no bar to the present suit.1 ** § 1074. Payment not pleaded.—* A question very analogous to this is, how far evidence of payments when not pleaded, or when made after the commencement of the suit, is admissible in the reduction of damages; and the more reasonable rule in the latter case would seem to be, that, in such case, proof of the payment is admissible to show that the plaintiff has not sustained the entire injury for which he claims compensation.' It is well settled, however, that after an action is brought and costs incurred, the defendant cannot bar the plaintiff's suit by paying the debt merely, without also paying the costs. And where such payment is made, the plaintiff will generally be entitled, if the costs are not paid, to take judg 1 Cook v. Moseley, 13 Wend. 277. 2 Shirley v. Jacobs, 2 Bing. (N. C.) 88; Lediard v. Boucher, 7 C. & P. 1 ; Richardson v. Robertson, 1 M. & W. 463. ment for nominal damages and his costs. But if the payment is made in satisfaction of the debt, damages, and costs, then the verdict will be for the defendant." A plea of payment into court of full satisfaction of all the causes of action in the declaration contained is good, being an answer to the damages as well as the debt.* But a plea of payment into court in debt, stating that the defendant never was indebted to the plaintiff to a greater amount than the sum paid into court, is bad, as not answering the damage for the detention of the debt.•** In an action on a note, a payment made on the note after suit brought, may be given in evidence to reduce the damages. () In New Hampshire it is held that, on the general issue, evidence of payment since suit. brought may be given in mitigation. And, in such cases, it seems that the court has a discretion as to costs.(") § 1075. Recoupment after verdict.—The principle of recoupment may be applied, in a proper case, after the plaintiff has obtained a verdict. For instance, where damages have been recovered in an action of tort, and the defendant has, in effect, satisfied them in part, the court will reduce the verdict pro tanto. And where the plaintiff had sued in trover for the value of goods in the defendants' possession, and after a verdict in his favor, the defendants had paid rent for the leasehold where the goods were, and which he was liable for, the court deducted the amount of the rent from the execution.() Belknap v. Godfrey, 22 Vt. 288. 3 Triston v. Barrington, 16 M. & W.61 4 Lowe v. Steele, 15 M. & W. 380. (*) Bischof v. Lucas, 6 Ind. 26. b) Dana v. Sessions, 46 N. H. 509. (c) Plevin v. Henshall, 10 Bing. 24. VOL. III.-19 CHAPTER XXXV. THE MEASURE OF DAMAGES UNDER THE ENGLISH STAT- 1076. Damages under statutes. 1077. Appropriation of private property for public use. 1078. English statutes and decisions. 1079. Lands clauses consolidation act. 1080. Measure of damages where 1081. Compensation must be for 1084. Nature of the interest taken. 1086. Remote damages excluded. 1087. Certainty. 1088. Lands injuriously affected when no land is taken. 1089. Damage must result from act made lawful. 1090. Must be such as would have been actionable but for the statute. § 1091. Rule of general application. 1095. Damage to access must be 1096. Thesiger's rule. 1097. Damage must be to lands. 1099. Land taken in part-Damages 1100. Special rules. 1102. Damage caused by user. statutes. 1104. Avoidable consequences. § 1076. Damages under statutes.-* Many interesting questions on the subject of damages arise under particular statutes. There is a large class of cases where a statute, while directing or prohibiting some particular act, omits to annex any penalty, or to prescribe any measure of damages. In these cases, the party aggrieved by the forbidden act or omission has his remedy at law. "The neglect of a compulsory statute which annexes no penalty SE to the transgression, will found an action at common law to those who have interest, ordaining the defendant either to do what the statute requires, or to pay damages."1 The damages in such cases are entirely at large. In reference to acts of this kind, the Court of Exchequer in England has held this language: "Where a statute prohibits the doing of a particular act affecting the public, no person has a right of action against another merely because he has done the prohibited act. It is incumbent on the party complaining to allege and prove that the doing of the act prohibited has caused him some special damage, some peculiar injury beyond that which he may be supposed to sustain in common with the rest of the Queen's subjects by an infringement of But where the act prohibited is obviously prohibited for the protection of a particular party, then it is not necessary to allege special damage." There is another class of cases where the legislature, following out the idea of the Aquilian law, has endeavored to put a stop to all inquiry into the actual damages by fixing an arbitrary sum as the measure of relief. There are others where, in order to punish some particular act, it gives double and the law. treble damages. There is §1077. Appropriation of private property for public use.— perhaps, however, no class of questions belonging to this branch of our subject, so important as those which grow out of the statutes under which public works of various kinds are carried on, and by which compensation is provided for injury that may be sustained by private proprietors in the prosecution of the work. The right of the government to take private property for public use is one of vast importance, and the power one Lord Kaims, Prin. of Eq. book i, part i, ch. v, p. 179. 'Chamberlaine v. Chester & B. Ry. Co., I Ex. 870. |