The opinion of the court was delivered by
Huston, J.It was contended here, that from the narr. in this case, it was apparent, that the jury gave damages for a period of time subsequent to the commencement of the action; or, that from what is contained in the narr. and pleas, they may have done so, and that this is error, for which this court must reverse.
I admit, that generally, in stating the damages, care must be taken that no part of them appear to have accrued after the commencement of the action; and that if it is laid affirmatively, that they did accrue after the commencement of the suit, it has been held to be error. I do not admit, however, that expressions in a declaration which will admit of such a construction, will, in all cases, be error. Where the injury is a continuing one, and such continuance is the ground of a new action, there is some reason in the law; but where the act, and the only one which is actionable, has passed before the writ issued, but the consequences, though continuing during the life of the plaintiff, are not the ground of a nevv action, it is perhaps otherwise. Damages in the shape of interest, are given in debt and assumpsit, up to the'time of the verdict; and in assault and battery, and mayhem, the eye, or the member destroyed, can never be restored, and the jury consider this, because no new action can be brought for it. It is not necessary, however, to give an opinion on this point, because there are other grounds on which the court think this narr. must be supported. I do not enter into the question, whether, “up to the day of exhibiting this bill,” relates in England to the bill of Middlesex, a writ to the sheriff, to bring the defendant into, court, or the narr called a bill; nor, whether, as the narr. ought to be filed there, of the first term, it is not to be considered as filed then, in order to support a judgment, though in fact, it was filed afterwards. The gentleman who drew this declaration, has admitted the phrase is incorrect in a declaration in this state. It is settled, long since, *282that this error is cured by a verdict, if the time is laid under a videlicit. 2 Saund. 169, 171, Note. Webb v. Turner, 2 Stra. 1095. It is so laid in this case. So, if the time laid is insensible, or impossible; for it was supposed the court instructed the jury at what point damages were to stop. The words, “ for a long space of time, from the day and year first above-mentioned, hitherto, became, and was,” &c., have also been objected to. The answer to this is, the precedents are so. See 2 Chitty’s Pl. 307, 308.
Judgment affirmed.