4 B. & Ad: 410. 1 Bing: N.C. 549. 6 C. B. 703. Example of presumption. 9 Co: 113a. [cf: "Seduc tion," post, P. 358.] Example of absence of presumption. fishery, but caught nothing. The Court of Common Pleas refused a rule to shew cause why the plaintiff's verdict should not be set aside, because of the infringement of the right which could hereafter be evidence of the exercise of the right by the defendant. In Blofield v. Payne the defendant imitated the plaintiff's hones and the envelopes in which they were sold, thereby injuring his right; the plaintiff had a verdict although no express loss of custom was shewn. In Bower v. Hill the plaintiff's right of way on a stream was obstructed, but the damage was problematical on account of the state of the stream: the verdict was for the plaintiff, for if he had acquiesced in the obstruction it would have become evidence of a renunciation of his right of way. In Couling v. Coxe the plaintiff sued the defendant for disobeying a subpoena to give evidence in his favour; the verdict on some of the counts was for the plaintiff with one shilling damages; but on the plea "that the plaintiff had no cause of action against his opponent," it was for the defendant. The Court gave judgment for the plaintiff non obstante veredicto. It was argued that "the existence of actual damage or loss is essential to the action, as the law will not imply a loss to the plaintiff from mere disobedience to the subpœna;" but the answer given by the Court was "yet here he may have sustained damage in respect of costs of some of the issues in the trial if the witness had come." The allegation that the defendant was a material witness was held, therefore, to be sufficient to carry the verdict. The right in such cases is, therefore, to have the attendance, not of any person promiscuously, but of any person whose evidence is material. In Marys's case the rule was laid down as to actions by masters for the beating of their servants: If the servant is beat, the master shall not have his action unless he lose the service; the servant shall for every small battery; the master has no damage but by a per quod: so that the original act is not the cause of the action, but the consequent upon it." In this case the right primarily violated is the servant's, but if the reversion has to be proved. In all of these cases-and instances might be multiplied without end-the rights alleged were respectively established, and in none of them was actual damage required to be proved. In all of them from their nature the Court was enabled to presume damage, and none of them admitted of the argument that by no possibility could damage have arisen. In all of them, very probably, the reason why the action was These examples brought was, except in the last, in order to establish a right, examined. or rather to prevent the defendant from acquiring an adverse right by prescription; but they are all cases in which the enquiry has been whether the act is such in its nature as to produce damage, in which cases, as we have seen, the presumption of law is that damage has been suffered, and, consequently, where only nominal damages are sought, no proof of damage is necessary. The only one which presents any difficulty is the fishing case; but this was evidently a case of trespass, and in all cases of trespass damage is presumed, Presumption in trespass. whatever form the trespass may take. It is not difficult to account for this; because it is impossible to say even from the mere act of walking on a man's land that no damage can possibly have accrued: and if it does not take the form of damage by injury to the grass, it may take the form of depriving him of the charge for coming on the ground which he was otherwise entitled to make (per Jessel, M.R., in Cooper v. Crabtree). 20 Ch: D. at P. 592. In trespass, then, the rule is well established that damage need not be proved. In Feize v. Thompson, "Heath, J., cited 1 Taunt: 121. a case of trespass, in which Grose, J., was of counsel, where no evidence being given of the precise amount of the injury sustained, the jury refused to give any damages, and on appliIcation the Court ordered a verdict to be entered for the plaintiff, with one penny damages." It is important to bear in mind that damages are the financial equivalent for the damage suffered. The right to recover damages, whether nominal or substantial, must therefore depend on the possibility of finding a financial equivalent for what has occurred to the plaintiff: this is usually expressed by saying that the plaintiff must have suffered temporal damage to entitle him to bring an action. This rule applies, of course, only to cases in which the law does not presume damage; although it is to be observed that where damage is presumed, it is presumed on the hypothesis that temporal damage must follow the act. In cases of slander where damage has to be proved, there is an old rule which says that the loss of consortium vicinorum is not sufficient to support the action (see Barnes v. Bruddell). A recent example of this is to be found in Roberts v. Roberts. By reason of defamatory words the plaintiff lost the membership of one of the private societies of a sect which had been constituted for religious or spiritual purposes. Cockburn, C.J., held that the action would not lie, because it amounted "at most to no more than the loss of the merely nominal distinction of being able to call herself a member of it": and "it did not appear that any real or material advantages attached to membership; such as a seat in chapel, or the opportunity of attending divine worship there." The learned judge said further that if the loss had been the exclusion of the plaintiff from the meetings of religious worship, or from any substantial right attaching to membership, it would have supported her action. 407. eg, loss of advantage not chance of damage. The same principle was applied in Chamberlain v. Boyd. 11 Q. B. D. The claim alleged that the plaintiff was a candidate for membership of the Reform Club, but upon a ballot of the members was not elected: that a meeting of the members was called to consider an alteration of the rules regarding the election of members; and that the defendant falsely spoke certain words concerning him, by reason of which he "induced, or contributed to inducing, a majority of the members to retain the regulations under which he had already been rejected, and thereby prevented the plaintiff from again temporal seeking to be elected to the said club. The plaintiff thus lost the advantage, which he would have derived from again becoming a candidate with the chance of being elected." The Court of Appeal held that no temporal damage had been sustained. Lord Coleridge, C.J., said, "The damage alleged is unsubstantial and shadowy, and is in truth incapable of being estimated in money": and Bowen, L.J., "I do not say that if the defendant by speaking the words complained of had actually prevented the election of the plaintiff, the latter might not have had a cause of action. . . . but all that is stated is that the plaintiff was prevented from again seeking to be elected. The defendant's words did not deprive the plaintiff of all chance of being elected; they only deprived him of 'a' chance. But the chance of an advantage is not the same as the advantage, and the risk of an injury is not the same as the injury." But to lose the hospitality of friends has heen held to be temporal damage: see Davies v. Solomon. § 2. SUBSTANTIAL DAMAGES. It being borne in mind that the first principle on which damages are assessed is that of compensation to the party injured, it follows that no special rules can be laid down under this second head. The plaintiff is entitled to recover his actual loss, and whether that loss be nominal or sub L [post, p. 310.] Actual loss may be re covered. [ante, p. 125.] 1 Sm: L. C. 264 [8th ed:] Same act may produce differ ent consequences on different people. I B. & Ad: 415. stantial the jury must assess its pecuniary equivalent. The work the jury have to perform is easy when the loss is admittedly nominal, but it becomes exceedingly difficult when it is alleged to be substantial; more especially when the damage is intangible, as in injuries to the person or to the reputation. This principle of "actual loss" tends to remove all difficulties in the way of applying Mr. Justice Maule's definition of nominal damages to those verdicts in which the nominal damages of one shilling or forty shillings have been given. These verdicts are usually called "nominal," but they in fact represent the jury's ideas of the pecuniary value of the right lost or injured. In the leading case of Ashby v. White the right in question was the right to vote at elections. The jury found for the plaintiff, but their estimate of the value of his loss is not given in the report. But Holt, C.J., said during the argument: "By my consent, if such an action comes to be tried before me I will direct the jury to make him pay well for it: it is denying him his English right: and if this action be not allowed, a man may be for ever deprived of it. It is a great privilege to choose such persons as are to bind a man's life and property by the laws they make." Again, a similar act may be productive of different results according to the person injured or the resulting circumstances. Thus in Marzetti v. Williams the wrongful dishonour of a customer's cheque by a banker was held to entitle the plaintiff to nominal damages only; whereas in Rollin v. Steward a 14 C. B. 595. verdict for £500, which was reduced by consent to £200, was allowed to stand. So the nature of the act itself may be such as to entitle the jury to presume that substantial damage 3 B. & C. 427. must follow: as in Tripp v. Thomas, where, in case for words, the defendant suffered judgment by default, and on the writ of inquiry the plaintiff offered no evidence in aggravation. The jury gave a verdict for £40, and the Court held they were not bound merely to give nominal damages. |
