CHAPTER XX. ASSESSMENT OF DAMAGES IN THE COURT OF CHANCERY. [THE Chancery Amendment Act, 1858 (21 & 22 Vict., c. 27), commonly called Lord Cairns' Act, enacts that "in all cases in which the Court of Chancery has jurisdiction to entertain an application for an injunction against a breach of any covenant, contract, or agreement, or against the commission or continuance of any wrongful act, or for the specific performance of any covenant, contract, or agreement, it shall be lawful for the same Court, if it shall think fit, to award damages to the party injured, either in addition to or in substitution for such injunction or specific performance" (a). The Court may cause the amount of the damages to be assessed, or any question of fact arising in the suit to be tried, by a special or common jury before the Court itself (b), or before the Court itself without a jury (c), or by a jury before a judge of the Superior Courts of Common Law at Nisi Prius, or at the assizes, or before the sheriff of any county or city (d). New trials may be applied for; and where the trial has been before the Court without a jury, the application may be made either to the judge before whom the trial was had or to the Court of Appeal in Chancery (e). Where the Court awards damages, and directs a trial or writ of inquiry as to the amount, the defendant may, on obtaining leave of a judge at chambers, pay money into court. In the event of a larger sum for damages not being awarded, 21 & 22 Viet. c. 27, Lord Cairns' Act. Money may be paid into court. It is not compulsory on the Court to award damages. the plaintiff will have to pay the costs of the trial or inquiry, unless the Court otherwise directs (f). It is in the discretion of the Court whether it will award damages under this Act, or leave the plaintiff to obtain them at law, and this notwithstanding the "Chancery Regulation Act, 1862" (25 & 26 Vict. c. 42), commonly called Sir John Rolt's Act, which enacts that in all cases in which any relief or remedy within the jurisdiction of the Court of Chancery is sought in any cause instituted therein, every question of law or fact cognizable in a Court of Common Law, on the determination of which the title to such relief or remedy depends, shall be determined by or before the same Court (g). The Court will not interfere to award damages under 21 & 22 Vict. c. 27, where it would not have interfered to grant relief before the statute (h)—as, for example, where the suit is for specific performance of an agreement for a partnership (i). But damages may be awarded although the case for an injunction fails (k), or although from circumstances which have arisen since the institution of the suit an injunction or specific performance cannot be decreed. For example, in a suit for specific performance, where performance was obtained from the defendant before the hearing, the Court directed the damages to be assessed by a jury in a court of common law (7). And where the suit was to restrain the infringement of a patent, an inquiry was directed as to damages, although the patent had expired pending the litigation (m). But the Court will not grant relief where the bill is filed for damages only (n). Therefore James, V. C., refused to entertain a bill filed so immediately before the expiration of a patent that it was impossible to obtain any equitable relief before the patent expired. He treated it as a mere device to obtain an award [(f) Consolidated Orders xli., Rule 40. Part iv. of this order regulates the proceedings under the Act, and schedule (N) to the orders contains the forms referred to in the order. (g) Johnson v. Wyatt, 2 De G. J. & S. 18; Swaine v. G. N. Ry. Co., 4 De G. J. & S. 211; 33, L. J. Ch. 399; Durell v. Pritchard, L. R. 1 Ch. 244 ; 35 L. J. Ch. 223. (h) Per Giffard, V. C., L. R. 7 Eq., at p. 116. (i) Scott v. Rayment, L. R. 7 Eq. 112. (k) Catton v. Wyld, 32 Beav. 266; Eastwood v. Lever, 4 De G. J. & S. 114; 33 L. J. Ch. 355. (1) Cory v. Thames Iron Works Company, 11 W. R. 589. (m) Davenport v. Rylands, L. R. 1 Eq. 302; 35 L. J. Ch. 204. (n) Middleton v. Magnay, 2 H. & M. 233.] of damages in the Court of Chancery instead of in a court of Common Law (0). The power of a court of equity to give damages is not confined to cases in which the plaintiff could recover damages at law (p); and the damages awarded differ from those which could be obtained at law in being given by way of compensation for permanent injury once for all, not as at law where successive actions may be brought and damages recovered toties quoties (q). must be shown. Damages will not be awarded in addition to specific per- Special damage formance unless special damage is shown to have resulted from the delay in completing the contract (r). They may be awarded although not specifically asked for in Damages may be the bill, the general prayer for relief being sufficient(s)]. [(0) Betts v. Gallais, L. R. 10 Eq. 392. (p) Eastwood v. Lever, 4 De G. J. & S. 114; 33 L. J. Ch. 355. (g) Per Lord Cranworth, C., Stokes v. City Offices Co., Limited, 13 L. T. N. S. 81. (r) Chinnock v. Marchioness of Ely, 2 H. & M. 220; 34 L. J. Ch. 399. (3) Catton v. Wyld, 32 Beav. 266. See, further, as to the Act, and for cases in which the Court, in its discretion, has awarded or refused damages, Morgan's Chancery Acts and Orders, 261, 4th ed.; Kerr on Injunctions, 221; Joyce on Injunctions, 593; and Daniell's Chancery Practice, vol. i., p. 946, 5th ed.] obtained under general prayer for relief. H H INDEX. ABANDONMENT, when loss is total without. See MARINE INSURANCE, 257. notice must be given, except in case of freight, 260. valid notice, when loss afterwards becomes partial, 263. ACCEPTOR, liability of. See BILLS, 174. action for injury caused by, 351. when brought by executors. See EXECUTORS, 392. ACCOUNT, when damages are recoverable in action of, 284. liability of receiver for profits which he might have made, 284. ADJUSTMENT, example of, 277. at foreign port, when binding on underwriters, 269. ADULTERY, damages in suits for dissolution or judicial separation, 380. AGENT. claims are to be tried on same principles as actions formerly, 380. entire separation a bar to an action for, 381. otherwise when partial, or not by deed, 382. evidence of terms upon which the parties lived; letters when admissible, infidelity of husband, 383. previous character of wife, 383. negligence of husband, 384. solicitations by wife, 384. wealth of defendant, 385. former recovery against another defendant for adultery, 386. See PRINCIPAL and AGENT. AMENDMENT of postea, in certain cases, 446. in case of general verdict upon several counts, if no evidence was application must be to the judge who tried, 446. may be made to him in full court, 447. his decision is final, 447. he cannot be forced to produce notes, 447. from what notes it may be made, 448. not from recollection of judge, 448. |