As to the power of the Court to reduce damages assessed by the jury, the judgments of the Court of Appeal in Belt v. Lawes should be read.

It is important to keep substantial damages perfectly distinct from special damages, which we shall consider shortly.

12 Q. B. D. 356.

In Rose v. Groves the plaintiff had a right to have his house 5 M. & G. 613. accessible to people passing on the river; the defendant floated timber in front of his landing-stage, thereby preventing people from landing, and injuring the plaintiff in his custom. The jury were satisfied that this loss had in fact occurred, and awarded £20 damages; and the Court refused to disturb the verdict merely because no special instances had been proved of customers going away.

Damages may be given in respect of

So also it is important to remember that the rules as to remoteness of damage are specially applicable to this branch of the subject. With regard to what may be included, apart from these rules, we must notice specially that damages may be awarded in respect of future loss. "The jury ought to take into consideration the prospective injury which might be thought likely to occur at the time when the action was brought" (Brett, M.R., Mitchell v. Darley Main Co.). It is 14 Q. B. D. at however important to distinguish, as was there done, between a continuous injury, such as a subsidence extending over a considerable period of time, and a succession of injuries, such as happened in that case.

Generally, subject to these remarks, the damages are only limited by the loss sustained.

future loss.

p. 134.

Thus in actions against the sheriff for failure to seize goods in execution, primâ facie the damage is measured by the whole value of the goods which might have been seized: Hobson v. Thelluson; and, in the old cases where the seizure L. R. 2 Q. B. 642. had been on mesne process, it being uncertain whether the plaintiff would have recovered or not in his action, it was held he could only recover such damage as he could shew he had sustained; but if he could prove that he had lost the

1 M. & Rob: whole, he was entitled to recover the whole with costs: Scott v. Henley.

227.

The judgment of Gibbs, C.J., in Merest v. Harvey, throws a great deal of light on the principle of assessment of damages, shewing that there are other questions to be considered beyond the mere pecuniary loss to the plaintiff, more especially in cases of trespass. It affords also a good illustration of the next division of the subject-vindictive damages.

I wish to know, in a case where a man disregards every principle which actuates the conduct of gentlemen, what is to restrain him except large damages? To be sure, one can hardly conceive worse conduct than this. What would be said to a person in a low situation of life, who should behave himself in this manner? I do not know upon what principle we can grant a rule in this case, unless we were to lay it down that the jury are not justified in giving more than the absolute pecuniary damage that the plaintiff may sustain. Suppose a gentleman has a paved walk in his paddock, before his window, and that a man intrudes and walks up and down before the window of his house, and looks in while the owner is at dinner, is the trespasser to be permitted to say, “Here is a halfpenny for you, which is the full extent of all the mischief I have done"? Would that be a compensation? I cannot say that it would be.

Closely connected with this subject is the rule with regard to continuing nuisances. It has been invariably held that the continuance of the nuisance gives rise to a second cause of action. For example, damages recovered in an action for erecting buttresses were held to be no bar to the recovery of damages for continuing them: Holmes v. Wilson. See also Westbourne v. Mordant; Penruddock's Case3 Some v. Barwish Shadwell v. Hutchinson; and Thompson v. Gibson,6 where the fact that the defendant could not remove the nuisance without committing a trespass was held to be no defence in the second action.

§3. VINDICTIVE DAMAGES.

Under this head we may shortly consider the second principle on which damages are assessed, punishment on the person causing the injury.

punished by heavy damages for malignant motives.

may be

The plaintiff may give evidence of anything showing the Defendant defendant's desire to increase the natural injury which could result from his act, such as malice. "It has always been held, that for trespass and entry into the house or lands of the plaintiff, a jury may consider not only the mere pecuniary damage sustained by the plaintiff, but also the intention with which the fact had been done, whether for insult or injury:" Abbott, J., Sears v. Lyons. There seems indeed little limi- 2 Stark: 317. tation to the jury's discretion in this matter as to the amount

awarded. Two cases will suffice by way of illustration. Examples. Huxley v. Berg was an action for trespass in breaking into a 1 Stark: 98. dwelling-house: the plaintiff's wife was so terrified that she fell ill and died. This was held to be no substantial ground of damage; but the evidence was admitted by Lord Ellenborough, L.J., to show how outrageous and violent the breaking

was.

In Forde v. Skinner a pauper's hair was cut off by order of 4 C. & P. 239. the master of a workhouse against her will. The order was alleged to have been given for the sake of cleanliness, but there was evidence given that it was done for the purpose of "taking down her pride." In summing up, Bayley, J., told the jury to consider whether in their opinion this did not constitute malice. "You will therefore decide," he said, "on the motives which actuated the defendants, and according to that decision you will estimate the amount of damages." The jury found a verdict for the plaintiff with £60 damages.

Bracegirdle v. Orford is an important case. It was an 2 M. & S. 77 action of trespass for breaking a dwelling-house under a false and unfounded charge and assertion that the plaintiff had stolen property in her house, per quod, she was injured in her credit. It was argued that evidence on this point ought not to be admitted, because although apparently put in to aggravate the damage, it was really combining an action. for slander with the trespass, and the time for the slander, being shorter, might have expired. Lord Ellenborough, C.J.,

The term

"special damages " is

used in two

ways.

Reason for

ing special

damage.

held the evidence was admissible, the per quod being laid as a matter of aggravation.

§ 4. SPECIAL DAMAGES.

The subject of special damages is somewhat confused owing to the different ways in which the term is used. In a technical sense "special damages" are damages that can be particularised. But the term is also used with regard to those cases in which the law does not presume damage, that is to say, in which damage has to be proved. In those cases it is said that special damage is the gist of the action. It is by no means clear, however, whether in these cases the damage proved must be what we have called technical special damages. For example, in an action for words spoken against a man in his business, the law presumes that he will be injured, and the jury will be allowed to assess the damage they think fairly commensurate with the injury; but if the plaintiff proves that he has lost specific customers, this is an item of technical special damages. But in a case falling outside the five instances of defamatory words in which damage is presumed, if the plaintiff proves that he has lost custom, tracing it of course distinctly as the result of the wrongful act, he proves that he has been damaged by the words; but he does not prove technical special damages. One of the questions to be determined is whether he ought to prove it by shewing the loss of specific customers.

Turning first to technical special damages, the origin of the rules of plead distinction between special and general damages is to be found in the rules of pleading, which allow the defendant to insist on a certain particularity of claim, and require that items of damage which can be distinctly traced shall be notified to the defendant, in order that when evidence is called to substantiate it he may be prepared either to rebut it by his own evidence, or to break it down by cross-examination. This particularity is also necessary in order that the items of claim

Peake, 62. covered unless claimed specifically.

Cannot be re

may be tested by the rules as to remoteness of damage. Most of the cases which have to be considered under the head of remoteness of damage are examples of claims for special damages, the enquiry being whether specific heads of damage can be recovered. The only practical principles to be noticed under this head are, the rule that the plaintiff cannot recover special damages unless they are specifically alleged, and the enquiry whether he has alleged it with sufficient distinctness. A few instances will suffice. In Pettit v. Addington the plaintiff in an action for false imprisonment was not allowed to prove that he had suffered in health; nor, in Lowden v. Goodrick, that he was stinted of food in prison; nor, again, in Holtum v. Lotun, in respect of two days' imprisonment 6 C. & P. 726. which resulted from a remand by the magistrate before whom the case was first heard. In each case the claims were for special damages which had not been laid. So under a claim in respect of loss of lodgers, the plaintiff was not allowed to prove the loss of a particular lodger, "because the number was not so great as to excuse a specific description on the score of inconvenience:" Westwood v. Cowne.

Peake, 46.

I Stark: 172,

But in Hartley v. Herring, an action was brought for 8 T. R. 130. slander imputing incontinence, by a person employed to preach to a certain dissenting congregation, from which he derived emolument; he alleged that by reason of the slander "persons frequenting the chapel had refused to permit him to preach there, and had discontinued giving him the profits which they usually had and otherwise would have given"; and it was held that it was unnecessary to give the names of the people who had so refused (1).

(1) The principle which distinguishes these two cases was dwelt on by Gould, J., in Iveson v. Moore: "In actions upon the case, where damages are 1 Raym: 486. only recoverable [i.e., in which, as it is said, special damage is the gist of the action], a precise certainty of the damages is not necessary to be shewn in the declaration, and therefore this general method of shewing his damage will be well enough. As if an action be brought by the master for battery of his servant, who cannot maintain the action unless he has received special damage by it, as loss of the service of his servant, yet if he declares that he has lost the service of his servant per magnum tempus, it is well enough.

"Where the damage is the result of a single instance, as in case for words by