of. . . . . It would seem, however, that when the consequences of an injury are peculiar to the circumstances and condition of the injured party, the law could not imply the damage simply from the act causing the injury. If it be true that the law implies a loss of time from the act complained of, it does not seem quite fair and just, when the sole object of the rule that requires special damage to be averred is to advise the defendant of the claim, to carry the implication so far as to imply also all the special consequences of such loss of time, when such consequences must depend on the peculiar circumstances of the plaintiff at the time of and previous to the injury, as that he was actually engaged in some special business which was at the time yielding a pecuniary profit." In Taylor v. Monroe,(*) under a similar allegation, it was held, that the plaintiff could not show that she was employed as a button-maker, and what wages she earned. Loomis, J., said: "As the business is not stated, nor any earnings or loss of earnings mentioned, the allegation referred to can only be construed as intended to characterize the injury, and indicate its extent and permanence in a general way, which amounts simply to a claim for general damages, and lays no foundation at all for proof of special damages. The evidence referred to was not intended simply to show the effect and extent of the injury, but to enhance the damages, by showing the loss of earnings in a special employment, requiring some special skill and training. These damages, therefore, were not the necessary result of the acts set out in the declaration, and could not be implied by law; but they were special damages, which, in order to prevent a surprise upon the defendant, must be particularly specified in the declaration, or the plaintiff will not be permitted to give evidence of them at the trial." In an action by an unmarried woman against a carrier for personal injury from his negligence, her diminished. chances of marriage must be specially alleged to entitle her to an enhancement of the damages on that ground. (") (") 43 Conn. 36. 46. () Hunter v. Stewart, 47 Me. 419. In Missouri it has been held that no recovery can be had for medical expenses in an action for assault and battery unless specially alleged, (") but on general principles this seems doubtful. In an action for false imprisonment, damages from the bad condition of the jail are special, and can only be proved when alleged.(") So sickness caused by the imprisonment must be specially alleged. (c) S1271. For other torts.-In Alabama, it has been held, that in an action brought by a firm for a malicious prosecution, proof of special damage arising from loss of reputation, credit, or business, cannot be given unless it is specially averred in the declaration.' And the principle has been recognized in South Carolina' and Pennsyl vania. (4) For slander of the plaintiff in either a public or private official capacity no allegation of special damage is necessary ;() but special damage must be alleged for injury to an author from the disparagement of a copyrighted work. () In an action for slander for words. spoken of the plaintiff in his trade or business, with a general allegation of loss of business, it is competent for the plaintiff to prove, and the jury to assess, damages for a general loss or decrease of trade, although the declaration alleges loss of particular customers as special damage, which is not proved. (*) Only nominal damages can be recovered against a sheriff for not executing a deed on a par? Rowand v. Bellinger, 3 Strobh. 373. 1 Donnell v. Jones, 13 Ala. 490. (*) O'Leary v. Rowan, 31 Mo. 117. (*) Johnson v. Von Kettler, 84 Ill. 315. (c) Lowden v. Goodrick, Peake's Cas. 46; Pettit v. Addington, Peake's Cas. 62; Atchison, T. & S. F. R.R. Co. v. Rice, 36 Kas. 593. (4) Stanfield v. Phillips, 78 Pa. 73. (*) Foulger v. Newcomb, L. R. 2 Ex. 327. (Swan v. Tappan, 5 Cush. 104. (*) Evans v. Harries, 1 H. & N. 251. An tition sale, uuless special damages are alleged.(^) allegation is necessary for recovery of the expenses occasioned by the fraudulent imitation of trade-marks.(") PRACTICE. § 1272. Damages upon demurrer overruled. When upon a demurrer judgment in given for the plaintiff, damages are to be assessed upon testimony; as has been seen, the amount of damages claimed is not to be allowed without proof. The defendant has a right to be heard on the question of damages, (°) and may reduce them to a nominal amount.(*) * Where there is a demurrer to evidence and a joinder, the court may have the damages assessed by the jury conditionally, or they may discharge the jury, leaving the damages to be assessed by another jury, should the demurrer be overruled.'()** If a demurrer to a declaration in a suit by drawer, against acceptor be overruled, the court may, in Indiana, assess the damages so far as the amount due on the bill is concerned; but as to the costs of the protest, if chargeable at all, there must be a jury.' So upon any undisputed document the court may assess damages without a jury ;(′) but where a doubtful question of fact is involved, like interest on a foreign judgment, a jury must be called in. (*) On a venire tam quam, to try 2 1 Bull N. P. 314; 2 Tidd's Pr. 786; Andrews v. Hammond, 8 Blackf. 540. Phipps v. Addison, 7 Blackf. 375. In the same State, in debt on a sheriff's bond upon the execution of a writ of inquiry, after a demurrer to the replication assigning breaches has been overruled, the quantum of the relator's damages is the only subject of inquiry. Clark v. The State, 7 Blackf. 570. (*) Lusk v. Briscoe, 65 Mo. 555. () Dixon v. Fawcus, 3 L. T. R. [N. S.] 693. (c) Hanley v. Sutherland, 74 Me. 212. (4) Crogan v. Schiele, 53 Conn. 186. (e) Acc. Hanover F. I. Co. v. Lewis, 23 Fla. 193. (*) Evans v. Irvin, 1 Port. 390. an issue as to one count, and assess contingent damages on demurrer to others, if the plaintiff be nonsuited as to the issue, he cannot proceed to assess contingent damages on the counts demurred to. When a declaration in assumpsit contains a common count, after judgment for the plaintiff on demurrer, a writ of inquiry should be awarded to ascertain the damages.(*) In Connecticut, however, it is said that "an inquest is merely to inform the conscience of the court," and may therefore be dispensed with; and the practice in that State, when a demurrer by the defendant is overruled, is for the court to assess damages in all cases.() In Maine the plaintiff has the option of demanding a jury.(©) § 1273. Upon plea in abatement.—Where issue on a plea in abatement is found for the plaintiff, the judgment against the defendant is final, and the same jury should assess the damages. If they fail, however, to do so, under the practice in Kentucky, a jury to inquire of damages may be called, instead of ordering a venire de novo.(a) 1274. Upon plea to the damage. * There has been much discussion how far a plea can be put in to the damage only; and the reasonable rule appears to be that such a plea is bad, unless the damage is so essentially the cause of action that without it the suit could not be maintained.'()** So where the defendant rightfully entered the plaintiff's close, but did unnecessary damage in carry 1 Packard v. Hill, 7 Cow. 434. (*) Stanton v. Henderson, I Ind. 69. Robinson v. Marchant, 7 Q. B. 918; Wilby v. Elston, 8 C. B. 142. () Havens v. Hartford & N. H. R.R. Co., 28 Conn. 69, 91. (c) Hanley v. Sutherland, 74 Me. 212. (d) Weathers v. Mudd, 12 B. Mon. 112. () Reindel v. Schell, 4 Jur. (N. S.) 310; 27 L. J. (C. P.) 146; Hopple v. Higbee, 23 N. J. L. 342; Saltus v. Kip, 2 Abb. Pr. 382. ing away goods, it was held that a plea denying unnecessary damage was an issuable allegation. (*) 1275. Upon default.-A judgment by default is an admission of the plaintiff's right to recover damages, but not as to the amount of damages; and upon a writ of inquiry, the defendant has a right to cross-examine the plaintiff's witnesses, (') and the plaintiff has the right to open and close. () The plaintiff, on default, must prove his damages, or he can recover nominal damages only. (d) So where, in an action for trespass, the plaintiff took judgment by default, but gave no evidence of circumstances of aggravation, it was held that although these were alleged in the pleadings, they were not admitted by the default, and exemplary damages could not be given. (©) So in an action for injury to property through negligence, it was held that, upon an assessment of damages after default, the defendant could reduce the amount to nominal damages by showing that there was no negligence on his part.() But the jury cannot, after a default, find for the defendant; (5) they must find at least one mill as damages. (") The court may, as in case of demurrer overruled, assess damages where the amount is certain; but the value of foreign money must be found by a (*) Carpenter v. Barber, 44 Vt. 441. () Thompson v. Haislip, 14 Ark. 220; Mizell v. McDonald, 25 Ark. 38 ; Russ v. Gilbert, 19 Fla. 54; Chicago & R. I. R.R. Co. v. Ward, 16 Ill. 522. (c) Wausau Boom Co. v. Dunbar, 75 Wis. 133. (d) Daniel v. Judy, 14 B. Mon. 393; Willson v. Willson, 25 N. H. 229; Connoss v. Meir, 2 E. D. Smith 314; Hackett v. Richards, 3 E. D. Smith 13. (e) Chicago & I. R.R. Co. v. Baker, 73 Ill. 316. Batchelder v. Bartholomew, 44 Conn. 494. (F) Ellis v. State, 2 Ind. 262: (1) Frazier v. Lomax, 1 D. C. (1 Cr. C. C.) 328. |