Waugh v. Bagg

1 Va. Col. Dec. 186

Opinion

Appeal from a Judgm’t of Essex County Court. Waugh the Pit. below Declared that the Defts. Testor. was Indebted 20 Sep’r 1724. 2248wt. of Tob’o and in Consideration thereof Assumed to pay it And for non paym’t Declares for 20£. Stg. Damage The Deft, pleaded non assumsit and Action non. within three years And to that Plea there was a Demurrer and Judgm’t for the Pit. and a Writ of Enq’ry was awarded and thereupon the Jury assessed 20£. Damages.

Sep’r Court 1730, the Deft, moved in Arrest of Judgment, assign’g several frivolous Causes, and the Cause was continued for Arguing the Exceptions till March following and then the Deft, moved for a new Writ of Enquiry which the Court Awarded accordingly, for which Reason the Pit. has Appealed And I conceive there is Error in the Judgm’t

1. Because excessive Damages is not sufficient cause for a new Writ of Enquiry, So it is held 1. Mod. 2.

2. The Damages here will not be held excessive

In the Case of Nurse and Barnes, where the Pit. Declares that the Deft, in Consideration of 10;6. promised to let him Enjoy certain Iron Mills for 6. Months and it appeared that the Iron Mills were worth but 20£. pr Annum and yet Damage were given to 500^. by reason of the loss of Stock laid And p’r Cur. the Jury may well find such Damages for they are not bound to give only the 10;£. but also the Spl. Dam. Raym’d 77.

So here the Special Damage is in delaying the paym’t of the Tob’o about six Years

And the Judgm’t was reversed