In Pleading. In personal and mixed ac tions (but not in penal actions, for obvious reasons), the declaration must allege, in con clusion, that the injury is to the damageiof the plaintiff, ' and must specify the amount of damages ; Com. Dig. Pleader (C. 84); '10 Co. 116 b.
In personal actions there is a distinction between actions that sound in damages and those that do not; but in either of these cases it is equally the practice to lay dam ages. There is, however, this difference; that, in • the former case, damages are the main object of the suit, and are, therefore, always laid high enough to cover the whole demand; but in the latter, the liquidated debt, or the chattel demanded, being the main object, damages are claimed in respect of the detention only of such debt or chattel, and are, therefore, usually' laid at a small sum. The plaintiff cannot recover greater damages than he has laid in the conclusion of his declaration ; Com. Dig. Pleader (0. 84) ; 10 Co. 117 a, b; Viner, Abr. Damages (R.); 1 Bulstr. 49; 2 W. Bla. 1300; Curtiss v. Lawrence, 17 Johns. (N. Y.) 111; Fish v.
Dodge, 4 Denio (N. Y.) 311, 47 Am. Dec. 254; Fowlkes v. Webber, 8 Humphr.. (Tenn.) 530; New Jersey Flax Cotton Wool Co. v, Mills, 26 N. J. L. 60. See AD DAMNUM. A verdict for larger damages than are alleged or proved should be set aside; Texas & P. R. Co. v. Morin, 66 Tex. 133, 18 S. W. 345.
In real actions no damages are to be laid, because in these the demand is specially for the land withheld, and damages are in no degree the object of the suit; Steph. Pl. 426 ; 1 Chit. Pl. 397-400.
General damages need not be averred in the declaration ; nor need any specific proof of damages be given to enable the plaintiff to recover. • The legal presumption of injury in cases where it arises is sufficient to main tain the action. Whether special damage be the gist of the action, or only collateral thereto, it must be particularly stated in the declaration, as the plaintiff will not other wise be permitted to go into evidence of it at the trial, because the defendant cannot also be prepared to answer it. See 2 Sedgw. Dam. 606 ; 4 Q. B. 493; 7 C. & P. 804 ; Agnew v. Johnson; 22 Pa. 471, 62 Am. Dec. 303; Pat ten v. Libbey, 32 Me. 379 ; Town of Troy v. R Co., 23 N. H. 83, 55 Am. Dec. 177 ; Brizsee v. Maybee, 21 Wend. (N. Y.) 144; Rice v. Coolidge, 121 Mass. 393, 23 Am. Rep. 279 ;
Nunan v. San Francisco, 38 Cal. 689; Tom linson v. Town of Derby, 43 Conn. 562; Par ker v. Burgess, 64 Vt., 442, 24 Atl. 743 ; Oliver v. Perkins, 92 Mich. 304, 52 N. W. 609; Rob erts v. Graham, 6 Wall. (II. S.) 578, 18 L. Ed, 791.
In Practice. To constitute a right to re cover damages, the party claiming damages must have sustained a loss; the party against whom they are claimed must be chargeable with a wrong; the loss must be the natural and proximate consequence of the wrong.
There is no right to damages, properly so called, where there is no loss. A sum in which a wrong-doer is mulcted simply as punishment for his wrong, and irrespective of any loss caused thereby, is a "fine," or a "penalty," rather than damages. Dam ages are based on the idea of a loss to be compensated, a damage to be made good ; Yates v. Joyce, 11 Johns. (N. Y.) 136; Smith v. Sherwood, 2 Tex. 460; Allison v. McCune, 15 Ohio 726, 45 Am. Dec. 605 ; Webb v. Mfg. Co., 3 Sumri. 192, Fed. Cas. No. 17,322; Lin ton v. Hurley, 104 Mass. 353 ; 16 Q. B. IX 613. See Dayton v. Parke, 142 N. Y. 391, 37 N. E. 642 ; Hale, Dam. 3. This loss, how ever, need not always be distinct and defi nite, capable of exact description or of meas urement in •dollars and cents. A sufficient loss to sustain an action may appear, from the mere nature of the case itself. The law in many cases presumes a loss where a wil ful wrong is proved; and thus also damages are awarded for injured feelings, bodily pain, grief of mind, injury to reputation, and for other sufferings which it would be impossible to make subjects of exact proof and computa tion in respect to the amount of the loss sus tained; Tilden v. Metcalf, 2 Day (Conn.) 259 ; Johnson v. Courts, 3 H. St' McH. (Md.) 510; Ratliff v. Huntly, 27 N. C. 545 ; Wilkins v. Gilmore, 2 Humphr. (Tenn.) 110; Huntley v. Bacon, 15 Conn. 267; Jennings v. Maddox, 8 B. Monr. (Ky.) 432 ; Hatt v. News Ass'n, 94 Mich. 119, 54 N. W. 766 ; White v. Barnes, 112 N. C. 323, 16 S. E. 922 ; Lake Erie & W. R. Co. v. Christian, 39 Ill. App. 495; Hale v. Bonner, 82 Tex. 33, 17 S. W. 605, 14 L. R. A. 336, 27 Am. St. Rep. 850. See MENTAL SUE FKR.ING. The rule is not that a loss must be proved by evidence, but that one must ap pear, either by evidence or by presumption, founded on the nature of the case.