Page:The New International Encyclopædia 1st ed. v. 05.djvu/865

* DALY. 749 DAMAGES. a judge of the Court of Common Pleas of New York, of which ke in the latter year became Chief Justice. In 18!tG-H8 lie was a justice of the Stale Supreme Court. During liis career on the bench he was consjjieuous lor wide legal attainments. DALYELL', or DALZELL', Thomas (c.loOf)- ]US5). A Scotch general, vigorous in the perse- cution of the Covenanters. He was born at Binns, Linlithgowshire. In 1042 he accompanied Cen. Kobert Jlonro in the expedition to Ireland, and fought in lO.')! at Worcester. Especially ex- cluded by Cromwell from the Act of Grace, he took service under the Czar Alexis of Russia, and participated as a general in a number of wars against the Turks and Tatars. In 166 he was appointed by Charles II. Commander-in- Chief of the forces in Scotland, and was partic- ularly commissioned to repress the Covenanters — a commission executed with brutal vigor. His defeat of the Covenanting troops at Rullion Green was followed by cruelties which made his name a by-word through the countryside. A stubborn Eo,yalist, he did not, says Creichton, "shave his beard since the nuirder of King Charles I." DAM, Ti.xker's. a guard of dough or clay placed by a tinker around a cavity to confine the melted metal until it 'sets.' It is worthless after use; hence the 'ernacular expression, 'not worth a tinker's dam.' DAMA, da'ma (Lat.). A gazelle {Gasella dama) of the Sudan, with short lyrate horns and no dark band on the sides. See Gazelle. DAMAGES (OF. damage, damage, Fr. dom- mage, from Lat. damnum, loss). The pecuniary recompense given by a court of law to one who has suffered an invasion of a legal right through the act of another. The right invaded may be one which the plaintiff enjoys in common with other members of society, as, for example, his right to have his person or property not inter- fered with ; or his riglit not to be injured through the negligence of others ; or it may be a right which he has acquired through entering into a special legal relation with another, as by con- tract. But, although tJie law furnishes a legal remedy for every violation of a legal right, that remedy is not always an action for damages. The en- tire jurisdiction of the equity tribunals is con- cerned with remedies of a different order — as injunction, the specific enforcement of contracts, etc. — the remedy of damages being for the most part left to the courts of common law. Further- more, not even at common law does every inva- sion of a legal right give rise to an action for damages. The breach of a condition, for example, is remediable only by action on the part of the one injured, thereby restoring both parties to their former condition. Thus if the condition was attached to a sale of land or goods, its breach enables the injured party to rescind the transaction and place himself in statu qtio, but not to sue for damages, however great the injury to him may have been. Strictly speaking, the term damages is not applicable to all cases of a recovery of money for infringement of legal rights, but only to such as call for an estimate or admeasurement by the court or jury of the injury suffered and of the proper compensation to be made therefor. Where the 'damages' are liquidated, i.e. where the amount to be recovered is fixed in advance by agreement of the parties, they are not dam- ages, in the technical sense of the term. Thus an action to recover the amount payable on a bond, or the amount due for goods sold and de- livered, or to recover a sum of money jiaij to the defendant by mistake, is nut an action for damages, but an action to recover a debt. But where the aiuount claimed is not ascertained, as where an injury has been done to a man's char- acter or property, or in the ordinary case of breach of contract, the action will be to recover ^he damages sufiercd through the defendant's wrongful act or default. The complaint or declaration of the plaintiff sets forth an estimate of the damages sustained by him, the amount of which will then be conclusively ascertained by the court or jury (usually the latter) upon prin- ciples determined by law. The principles upon which damages are meas- ured by the courts vary according to the nature of the right infringed and sometimes of the act b}' which it was violated, and are of a most illogical and unsatisfactory character. To a considerable extent they are still influenced by considerations which belong rather to the con- ditions and feelings of primitive .society than to those which now govern the relations of the parties and the administration of justice. In their origin, damages were a pecuniary commu- tation of the right of private vengeance, and were based not on an.y principle of restitution, but on that of satisfaction to the injured party. It was a long step toward the orderly administration of justice when the victim of a theft was com- pelled to rest satisfied with four times the value of the thing taken, instead of scourging the thief and selling him into slavery, as was the law of the Twelve Tables. But the damages so awarded were as clearly vindictive in char- acter as was the harsher penalty of the earlier law, and this vindictive element still survives in the modern law of damages. Thus, it is still the law in England and in many of the United States that a tenant who commits willful waste on the premises shall pay thrice the amount of the damage committed, and that a tenant who refu.ses to quit after due notice shall thereafter pay his landlord double rent. To the same prin- ciple is due the doctrine of aggravation of dam- ages, or 'vindictive,' 'retributorv,' or "exemplary' damages, which perntits a recover.v in excess of the actual damage suffered in certain cases of breach of promise of marriage, libel, slander, and seduction. There was abundant justification for furnishing this solace to the vindictive feelings of the injured paity in an age when it was neces- sary to buy him oft' from a more violent vindi- cation of them, but it is submitted that the survival of this barbarous principle into our milder age cannot be justified. Obviously, the sound principle for the award of damages is that of restitution, rather than of satisfaction — the restoring to the injured party of the property of which he has been deprived, or making to him due compensation for the injury sustained by him — and this principle is generally followed b.y our law in most actions other than those above referred to. It is expressed in the phra.se that damages are limited to the loss which the plaintiff has actually sustained. In practice, however, a more restricted rule is fol- lowed, the defendant being liable only for such damages as he did in fact contemplate or which