service of the tsar of Russia, and distinguished himself as general in the wars against the Turks and Tatars. He returned to Charles in 1665, and on the 19th of July 1666 he was appointed commander-in-chief in Scotland to subdue the Covenanters. He defeated them at Rullion Green and exercised his powers with great cruelty, his name becoming a terror to the peasants. He obtained several of the forfeited estates. On the 3rd of January 1667 he was made a privy councillor, and from 1678 till his death represented Linlithgow in the Scottish parliament. He was incensed by the choice of the duke of Monmouth as commander-in-chief in June 1679, and was confirmed in his original appointment by Charles, but in consequence did not appear at Bothwell Bridge till after the close of the engagement. On the 25th of November 1681, a commission was issued authorizing him to enrol the regiment afterwards known as the Scots Greys. He was continued in his appointment by James II., but died soon after the latter’s accession in August 1685. He married Agnes, daughter of John Ker of Cavers, by whom he had a son, Thomas, created a baronet in 1685, whose only son and heir, Thomas, died unmarried. The baronetage apparently became extinct, but it was assumed about 1726 by James Menteith, a son of the sister of the last baronet, who took the name of Dalyell; his last male descendant, Sir Robert Dalyell, died unmarried in 1886.
DAM. (1) (A common Teutonic word, cf. Swed. and Ger.
damm, and the Gothic verb faurdammjan, to block up), a barrier
of earth or masonry erected to restrain, divert or contain a
body of water, particularly in order to form a reservoir. (2) (Fr. dame, dame; Lat. domina, feminine of dominus, lord, master), the mother of an animal, now chiefly used of the larger quadrupeds, and particularly of a mare, the mother of a foal.
DAMAGES (through O. Fr. damage, mod. Fr. dommage, from
Lat. damnum, loss), the compensation which a person who has
suffered a legal wrong is by law entitled to recover from the person
responsible for the wrong. Loss caused by an act which is not
a legal wrong (damnum sine injuria) is not recoverable, e.g.
where a father loses a young child by the negligence of a third
party.
The principle of compensation in law makes its first appearance as a substitute for personal retaliation. In primitive law something of the nature of the Anglo-Saxon wer-gild, or the ποινή of the Iliad, appears to be universal. It marks out with great minuteness the measure of the compensation appropriate to each particular case of personal injury. And there is a resemblance between the legal compensation, as it may be called, and the compensation which an injured person, seeking his own remedy, would be likely to exact for himself. In such a system the two entirely different objects of personal satisfaction and criminal punishment are not clearly separated, and in fact, criminal and civil remedies were administered in the same proceeding.
Under modern systems of law, the object of legal compensation is to place the injured person as nearly as possible in the situation in which he would have been but for the injury; and the controlling principle is that compensation should be determined so far as possible by the actual amount of the loss sustained. In England, civil proceedings for reparation and criminal proceedings for punishment are with few exceptions carefully kept separate. In Scotland, pursuit of the two kinds of remedies in the same proceeding is possible but very rare; but in France and other European states it is lawful and usual in the case of those delicts which are also punishable criminally.
In the law of England the two historical systems of common law and equity viewed compensation or reparation from two different points of view. The principle of the common law was that the amount of every injury might be estimated by pecuniary valuation. The idea was no doubt derived from the old tariffs of were, bot and wite, in which the valuations were elaborate. Until 1858 (Cairns’ Act) courts of equity had no direct jurisdiction to award damages, and their business was to place the injured party in the actual position to which he was entitled (restitutio ad integrum). This difference comes out most clearly in cases of breach of contract. The common law, with a few partial exceptions, could do no more than compel the defaulter to make good the loss of the other party, by paying him an ascertained sum of money as damages. Equity, recognizing the fact that complete satisfaction was not in all cases to be obtained by mere money payment, compelled those who broke certain classes of contracts specifically to perform them, and in the case of acts or defaults not amounting to breach of contract, on satisfactory proof that a wrong was contemplated, would interfere to prevent it by injunction; while at common law no action could be brought until the injury was accomplished, and then only pecuniary damages could be obtained. Since the Judicature Acts this distinction has ceased and the appropriate remedy may be awarded in any division of the High Court of Justice.
Under the common law damages were always assessed by a jury. Under the existing procedure in England they may be assessed (1) by a jury under the directions of a judge; (2) by a judge alone or sitting with assessors; (3) by a referee, official or special, or officer of the courts with or without the assistance of mercantile or other assessors; (4) by a consensual tribunal such as an arbitrator or valuer selected by the parties. Whatever the mode of assessment, it is subject to review if the assessors have clearly mistaken the proper measure of damage.
In the case of assessment by a jury, the verdict may be set aside because the damages are clearly excessive or palpably insufficient, or arrived at by some irregular conduct, e.g. by setting down the sum which each juryman would give and dividing the result by twelve. The appellate court, however, cannot, without the consent of the parties, itself fix the amount of damages in a case which has been submitted to a jury (Watt v. Watt, 1905, Appeal Cases 115).
The courts have gradually evolved certain rules or principles for the proper assessment of damages, although extreme difficulty is found in their application to concrete cases. A distinction is drawn between general and special damages. (1) General damage is that implied by law Measure of damages. as necessarily flowing from the breach of right, and requiring no proof. (2) Special damage is that in fact caused by the wrong. Under existing practice this form of damage cannot be recovered unless it has been specifically claimed and proved, or unless the best available particulars or details have been before trial communicated to the party against whom it is claimed.
Contracts.—“The law imposes or implies a term that upon breach of contract damages must be paid.” The general tendency of legal decisions in cases of contract is (i.) to make the amount of damages which may be awarded a matter of legal certainty, (ii.) to leave to a jury or like tribunal little more to do than find the facts, (iii.) and to revise the assessment if it is clear that it has been made in disregard of the terms of the contract or of the natural and direct consequences of the breach. The measure of damage, general speaking, is the sum necessary to place the aggrieved party in the same position so far as money will do it as if the contract had been performed. If the breach is proved, but the person complaining has suffered no real damage, he is entitled to have his legal right recognized by an award of what are called nominal damages, i.e. a sum just sufficient to carry a judgment in his favour on the infraction of his rights. Nominal damages, it will therefore be seen, are not the same as “small damages.” He is, however, also entitled to prove and recover the special or particular damage lawfully attributable to the breach. Where the contract is to pay a fixed sum of money or liquidated amount, the measure of damages for non-payment is the sum agreed to be paid and interest thereon at the rate stipulated in the contract or recognized by law.
The law is the same in Scotland and in France (Civil Code, art. 1153). In some contracts the parties themselves fix the sum to be paid as damages if the contract is not fulfilled. These damages are described as liquidated, in Scots law stipulated or estimated. It would be supposed that the sum thus fixed would be the proper damages to be awarded. And under the French
