he shall recover damages not according to the value when the Cн. 28. action is brought, but the value when they become due. In Art. 3. all the declarations in the books, the value is laid on the day of delivery. Dyer 82; 8 D. &. E. 162, Saunders v. Kentish.

Powell on Con. 409.1 Vern. 217, Speake v. Hence, Speake.2 Vern. 394, Gardiner v.

5. If one be to pay on such a day five quarters of corn, and at the day of the contract entered into it is valued at £50, and at the day of payment at £5, the promise will be entitled either to the five quarters of corn or the £5. if he sue for the damages on the contract, £5 is the measure of them. But if the thing, as stock to be transferred, rise in Pullen.value after the day and before the decree, a court of equity may order the thing itself to be delivered. Damages, the value of the flour the day the cause of action arose.

3 Cranch 278. Forrest v.

Elwes.

Mass. S. Jud.

ler.-5 Burr.

2 Burr. 1011.

6. In this case, Fish v. Wheeler, the declaration was on Court, Nov. a note of hand, dated Dec. 26, 1781, value received in 1790, Essex, continental money, I promise the plt. to pay him or order Fish v. Whee£600 in Pierce's and Imlay's final settlements, so called 2593.-Stra. &c., on or before the 26th day of February 1787, with inter- 406, Dutch v. est if not paid at the aforesaid time. No value was laid in the Warren.writ. These kind of public securities at this time of payment 3 Ves. were worth 2s. 2d. in the pound, when the action was com- 629.-4 Ves. menced 7s., and at the time of the trial 12s. 4d. in the pound. Jr. 492.The question was if the jury should assess as damages the 216-1 Wash. value 2s. 2d. in the pound on Feb. 26, 1787. After several 1.-1 Bay. arguments this value at the time of payment was adopted by 105, 309, 357. the court as the rule. Same principle adopted 3 Wheaton's R. 200; also 3 Cranch 298; same principle 6 Wheaton 209, 218; holds too as to real estate, id.

2 Cain. Er.

Rucker,

535.

§ 7. The underwriter's contract of insurance is of indemnity Lewis v. or of warranty, that the thing shall go safe and undamaged ; 2 Burr. 1167. and if damaged, he will pay the amount of the damage, that -2 Marshall is, the proportion of damage, as a fifth, a sixth, &c. taking the prime costs as the basis; that is, the costs at the outset, the shipping port. "He has no concern in any after value," any rise or fall of the market.

in

8. The grantor of land covenants in his deed he has an indefeasible title; after eviction the grantee recovers only the value of the land when the deed was made, for then the cause of action arose.

ART. 3. Promises to deliver &c. on demand. § 1. In this case the time of the demand made is the rule; then the plt. becomes entitled to the thing, and his right of action attaches and interest begins.

4 Dallas 441.

2. This case, Bartlett v. Moulton, was assumpsit on a Mass. S. Jud. note to pay or deliver corn on demand. The court held, 1st,

Conrt, June 1784, Bartlett v. Moulton. Greenough v. Amory, post, Insolvency.

CH. 28.
Art. 4.

3 T. R. 539,

v. Vernon.

there must be an actual demand made, and that the contract is not broken till the demand is made: 2. That the damages must be estimated according to the price of corn at the time of making the demand: 3. That fish to the amount of £27 paid and endorsed on the note was no evidence of a demand of payment.

3. The promise in this case was to transfer stock, but no 549, Atterson time was named for doing it. The promisor became a bankrupt. The court held, that the day of the bankruptcy was the last day he could have to transfer the stock, and directed the jury to enter a verdict for the plt. for £5750, the price of the stock on that day. As this was the last day he had to transfer, it became a first day and operated as a day appointed, or as a demand, as the plt's. right of action then commenced and 1 Day's Ca, attached. In cases of frauds the jury is not restrained to any particular rule of damages.

250.

2 W. Bl. 1078, Flureau v. Thornhill.

Dougl. 376,

752.-3 Wils.

4. In this case it was decided, that if A agrees or contracts to buy lands, to which without collusion the title proves defective, he is not entitled to any damages for the loss of his bargain; and Blackstone J. said, "these contracts are merely on condition frequently expressed, but always implied, that the vendor has a good title.' "And if he has not, the return of the deposit with interest and costs is all that can be expected."

§ 5. In all these cases it seems reasonable for the jury to 205.4 Com. give interest as damages, after the day fixed for payment, or after the demand made, on general principles. See Interest 2 W. Bl. 761. and Insolvency, post.

D. 406.

2 Ld. Raym.

6. No damages can be recovered for any matter arising 1382, Baker after action commenced. If entire damages be given, judgment is arrested if it cannot be for all.

v. Backe.

1 Wils. 295. -1 Lev. 11,

gan.

ART. 4. Promises to pay unreasonable sums.

1. When a bargain is so exceedingly unreasonable as eviJones v. Mor- dently to have been made under some mistake of both parties, the promisor may be relieved and charged with reasonable damages even by a jury, as where one agreed to pay for shoeing a horse, a barley-corn for the first nail, and so double every nail, which amounted to 500 quarters. The court directed the jury to find a less and reasonable sum. This was held clearly to be a bargain that no man in his senses would make. There is a like case 6 Mod. 305.

12 Mod. 542,

2. Where the plt. has recovered damages in assault and 543, Filter v. battery, they are according to the injury, and a full satisfaction; and no action lies for consequential damages.

Veal.

1 Mass. R. 153.

3. Where by law damages are to be doubled or trebled, and the jury finds single damages, the court doubles or trebles them &c.

4. Owners of a vessel held to pay more for their master's misconduct to the party injured by him than they recovered of him in their suit against him. The sum they paid not a fixed measure; 1 Dallas 185.

CH. 28.

Art. 5.

dal.-5 D. & E.

tions of fraud

ART. 5. Damages agreed as measure. 1. When a for- 1 W. Bl. 389, feiture or sum is named in an agreement &c., the question Bird v. Ranoften is, when it is fixed by the parties and ought to be con- 636.-1 Day's sidered as the measure of damages; or when it is a mere Ca. in E. 250, penalty to be chancered, or damages liquidated by the 255. In acparties and not to be chancered. If a servant depart from his the jury is master's service and pay the penalty, no action lies against the not confined enticer. And Lord Mansfield observed, the true construction rule of damto any precise of all articles guarded with a penalty, is to afford either "of ages, Norton two remedies to be pursued at the option of the party injur- . Hatheway ed;" one from time to time for real damages, and a remedy a written given in terrorem by way of punishment beyond the value of contract for a the injury done, and therefore called a penalty. When equity that is, the considers this penalty as a security to enforce the performance measure, id. of the thing it will relieve against it, but not when considered Tyler v. as a rigorous punishment.

& al. And on

sum certain,

Marsh.

rence v. Par

§ 2. In this case, Lawrence v. Parker, this subject of liqui- 1 Mass. R. dated damages is considered; and there is considerable doubt 191, Lawwhat damages are to be viewed as liquidated or ascertained ker. by agreement of the parties.

Winter v.
Trimmer.-

3. This seems now to be well settled, that one in this 1 W. Bl. 395, case of assumpsit, as well as in some other cases, may recover in damages more than the penalty of a charter-party or other 2 T. R. 388, contract, for a breach thereof. So more than the penalty of a Longdale v. bond, 6 D. & E. 303; 1 East 436; see Ch. 112, a. 5, s. 3; Bunb. 23; 4 D. & E. 33; 2 H. Bl. 436, 547; 2 W. Bl. 1190; 2 P. W. 191; Stra. 533; 10 Mod. 511; 2 Dal. 352; 4 Dal. 149.

§ 4. And even against a surety in a bond, though this has been much contested. But it may be observed, that when the surety makes the contract as to pay money with interest, he engages as to all the reasonable consequences; and his contract in fact, is to pay principal and interest, though they shall together exceed the penalty. See Ch. 148, a. 1, s. 9, as to surety; but see a. 13, s. 3.

Church.

1 Mass. R.

308, Harris v.

Whittemore.

2 T. R. 32,37,

5. If one agree to perform certain work each week, and Fletcher r on failure to pay a weekly sum, this is not a penalty; but Dyche. is in the nature of liquidated damages. Ashhurst J. said, this 2 Bos. & P. 346, 354,is a case of liquidated damages agreed on to prevent disputes; 3 Caines' R. it would be difficult for a jury to ascertain the damages. Bul- 43, but 6 Ves. ler J. said, this is a case of liquidated damages, and like 411. demurrage. In either case it is impossible to ascertain precisely what damages the party has really sustained; and

CH. 28. therefore, the contracting parties agree to pay a stipulated Art. 5. sum. No damages on recognisance of bail for delay of execution, 2 Ld. Raym. 1130.

4 Burr. 2225,
Low v.
Pears.-Pow.

on Con. 205.

-6 D. & E. 13, 14.

2 Wils. 5, 6,

-5 Wood's

Con.

§ 6. The party agreed to marry or pay such a sum; this sum is fixed, and is the ascertained damages by agreement, and Lord Mansfield said, "there is a difference between covenants in general, and covenants secured by a penalty or forfeiture. In the latter case the obligee has his election." Stinson v. Hughes.

§ 7. On a bond or contract given to save a parish harmless Cookv.Pettit. from the maintenance of a bastard child, the court held, that a penalty in such a contract cannot be chancered, and is 2 Vern. 119. not within the 3 & 4 of Anne. It must be because there is no -Finch 117. rule to chancer by. 1 Fonb. Eq. 142, 156; 2 Do. 423. 8. "Chancery never relieves, but in such cases where it 113.-2 Pow. can give some compensation in damages, and when there is some rule to be the measure of damages to avoid being arbitrary;" never without a rule or measure of damages.

-3 Atk. 395.

Mod. 8 & 9,

on Con. 205, Wafer v. Mocato.

3 Bl. Com. 435.

2 Chan. Cascs

198.-2 Pow.

on Con. 206,

Blake v. E. I.
Compauy.

Mass. S. J.
Court, June

v. Wilkins.

9. A court of chancery no more than a court of law can relieve against a penalty in the nature of stated damages;" nor can mere damages" be adjudged by the chancellor's conscience, but only by a jury, it is their exclusive province to ascertain mere damages, except in Justices' courts &c. in small cases, and not in these in all the States.

§ 10. One, an agent of the company, covenanted he would not trade for himself &c. in several commodities, on a penalty, which much exceeded the value of the goods; he did however trade. Being sued, he proved the trading to be for their benefit. But the court held, there could be no relief against the penalty, as there was no measure of damages.

§ 11. Peters bound himself to find Mrs. Wilkins necessaries 1784, Peters during life, and mortgaged land as security; he neglected to find the necessaries &c. and she brought an action of ejectment to recover the land. And the court held, the contract could not be chancered, there being nothing, no rule to ascertain the damages by, and the court said that they may amount to the penalty.

2 Wils. 377, Drape v. Brand.

Cowp. 357,

Goodwin v.
Crowle.

§ 12. But in a lease it was provided, that if the lessee cut trees and did not repair, he should be subject to the penalty of £500. He cut trees and did not repair, but the court held, that on 8 & 9 W. III. Ch. 10, the jury ought to consider the whole case, and assess the real damages done to the farm.

13. And where the deft. agreed on a penalty of £250 to sink a pit, and to begin in fourteen days, and failed.. On the 8 & 9 W. III. Lord Mansfield said, the act directed that alty, 2 Bos. & the penalty should not be levied in any case, but the judgment

What a pen

P. 346.

must be as usual to recover the debt as heretofore, but then it Cн. 28. only stands as a security for the damages sustained.

Art. 6.

Bl. 1190.

$14. From these, and many other cases that might be cited, it is difficult to decide when the plt. is to recover the pen- 3 Bos. & P. alty in any contract as such, or the penalty as damages stated 630-2 W. by the parties; or 3d, when he is to recover real damages. No precise line seems to be drawn between the cases. By the Massachusetts acts, provision is made respecting penalties; but they do not affect the above distinctions.

$15. This act provides that in all cases, in the Supreme Mass. Act, Judicial Court or Common Pleas, "to recover the forfeiture Nov. 4, 1785. annexed to any articles of agreement, covenant, contract, or charter-party, bond, obligation, or other specialty," when the forfeiture, breach, or non-performance, shall be found by a jury, by the default or confession of the deft., or upon demurrer, the court make up judgment for the plt., " to recover so much as is due in equity and good conscience."

§ 16. And by another act it is provided, that a judgment Mass. Aet, on a penalty in a bond, payable by instalments, shall stand as March 1, a security for further damages. These acts are the old province laws revised.

§ 17. On these acts a penalty can be found or confessed, and so recovered; or when the plt. sues for it, and it can be chancered only when he sues for it, and then, as in the case of Peters v. Wilkins, only when there is something to chancer by ; and as in the case of Cook v. Petit & al., before. So it cannot be chancered where the sum is as damages agreed and stated by the parties, as in Fletcher v. Dyche; or where the plt. sues merely for his damages, as stated in some of the preceding cases.

§18. If there be any general principle applying to the cases, a part of which are stated in this fifth article, it is thisthat whenever one agrees to perform services &c., and if he fail, to forfeit such a sum, this sum is the measure of damages, whenever it may be inferred the parties so intended it, or whenever it is the best rule in the case, from the uncertainty in applying any other, for want of a measure of damages.

1799.

$19. In debt on the penalty of a bond, payable by instal- 1 Mass. R. ments, according to said act of 1799, the court will enter 10, 12, Wal judgment for the damages incurred up to the time of the do. Fobes judgment.

& al.

$20. In a judgment on a mortgage, principal and interest 2 Mass. R. were allowed exceeding the penalty.

118, Pitt v. Tilden.

2 Mass. R.

ART. 6. Nominal damages. §1. If judgment be obtained against a bankrupt, who has obtained his certificate for a debt 374, Selfridge due before the bankruptcy, and the execution be delivered to v. Lithgow.