It is doubtful

The case is clearly one of those cases of slander in which whether, when the law does not presume damage, and it is an authority to shew that in such cases, when it is said that " special damage is the gist of the action," technical special damage need not be proved. It is believed that this is the rule, notwithstanding several dicta to the contrary (2).

actual damage must be proved, it must be proved specifically.

[cf: also" Slander," and the

post, p. 310.]

1 Esp: 48.

On the other hand, the rules as to technical special cases there cited, damages apply to these cases as well as to those in which the law presumes damage when they are alleged. Thus in Ashley v. Harrison, the case in which it was afterwards ruled that an action would not lie for libelling a performer on the stage, who in consequence refused to act, whereby the plaintiff lost the profits of her performance, special damage was the gist of the action supposing the plaintiff could have succeeded. But items of special damage were not alleged. Consequently Lord Kenyon, at Nisi Prius, refused to allow this question to be asked of the box-keeper of the theatre: "In consequence of Madam Mara's declining to sing, did not several persons give up their boxes?" But he allowed the witness to be asked generally "whether the receipts of the house had not diminished from the time Madam Mara had declined to sing:" because "to ask if particular persons had not in consequence given up their boxes was special damage, and should have been specially laid in the declaration.”

1 Ex: D. at p.

94.

the speaking whereof the plaintiff maritagium amisit, there the plaintiff ought to shew that there was a communication of marriage between him and J. S., &c. But where the damage is complicated, and is greater or less according to the fewness or number of instances, there the law is otherwise. And if the law were not so, it would be very inconvenient; for in the present case [one of loss of custom] it would be almost impossible for the plaintiff to shew all the names of his customers, &c. It is like the case of Mr. Harris, the counsellor, who brought an action upon his case for false and scandalous words spoken of him, per quod he lost his clients, without naming them."

Holt, C.J., and the majority of the Court gave judgment for the defendant, but the case was afterwards argued before all the judges of the Common Pleas and Exchequer, and they were all of opinion that the action lay.

(2) In Riding v. Smith, Kelly, C.B. said that the special damage must be established not merely by general evidence that the business had fallen off, but by shewing that particular persons have ceased to deal with the plaintiff.

So, in Evans v. Harries, an action for slander in business, 1 H. & N. 251. there was a general allegation of loss of custom, and also of special loss in respect of certain customers: this last was not proved, but the plaintiff was held entitled to damages for the general loss.

confused by the non-tech

the term.

If this be the true rule, there is very little reason for re- The subject is taining the term "special damage" in the second and nontechnical sense. The cases in which it is said to be of the nical use of gist of the action are simply cases in which the law does not presume damage, but in which it has to be proved; we have hitherto always made use of the expression, where the law does not presume damage, the plaintiff must prove that he has suffered actual damage before he can succeed in his action; and this seems to be a satisfactory statement of the law. The different cases of slander afford excellent illustrations of this, as also the cases for seduction of servants, per quod the master servitium amisit, and numerous others which will be found in the course of this work.

The most important class of cases in which the term special damage is used are those in which the plaintiff has been injured by a public nuisance. But this class depends on principles peculiar to it, which must now be independently considered.

§ 5. SPECIAL DAMAGE TO THE INDIVIDUAL ARISING FROM

BREACH OF PUBLIC DUTY.

jury to indi

We proceed now to consider the very important rule of Peculiar inlaw which is commonly called the right of an individual vidual. specially damaged by the breach of a public duty (generally a public nuisance) to bring an action for damages. All that has been said in the last section as to the necessity of keeping technical special damages distinguished from the special damage, which is the gist of an action, applies to this section; and we therefore propose to use the term "special injury" in order to keep the distinction clear, and to preserve, as far

[ante, p. 5.]

as possible, the accepted terminology. "Peculiar injury" would, however, be a more apt and accurate expression.

Before examining the cases it is essential to have a clear insight into the nature of public duties.

It will be remembered that in the introductory classification of rights and duties, the first class comprised "rights Rights in rem. vested in certain determinate persons which are in rem, that is, which are available against the world at large. Corresponding to them are duties laid on all other members of the Duties corre- community. These duties are always negative; they are forbearances because the duty is to abstain from hindering the exercise or enjoyment of the rights."

lative.

Now it is obvious that such rights may be possessed by all members of the community alike. When this is the case the right may with strict accuracy be called a public right, and the duty correlative a public duty.

Such duties are aptly described by Mr. Holmes as duties of "all to all."

For example, all have a right to walk on the highway; and the duty is laid on all to abstain from hindering the exercise of this right.

These rights more usually arise at common law; and the remedies for violation of them depend also on the common law.

Now these public rights seem capable of division into the same two classes as all other rights, namely, those in which the law presumes damage, and those in which it does not; the former being tested in the same way as before, by the naturalness or probability of damage flowing from the violation of the right. If we take an obstruction of a highway, for example, it affects people in two different ways. Those who have the right to pass along it, but whose right is not hindered because they have not attempted to pass that way, would clearly have no right of action because they have suffered no damage, and the law could not infer a damage in their behalf. But those who, having the right to pass by the road,

are hindered in the exercise of that right have suffered a damage, though in the absence of proof of substantial damage, an action by any one of them would only terminate in a verdict for nominal damages.

The law tiplicity of

abhors mul

nal damages;

But as the right is possessed by all, every member of the community might, during the continuance of the obstruction, become entitled to recover nominal damages; and a multi- suits for nomiplicity of suits would be the result of every obstruction, or, to use the generic term, public nuisance. The law abhors the multiplying of such suits, and has consequently taken away from all members of the community alike this cause of action. in respect of nominal damages to which they may become entitled, and has substituted the remedy by indictment, which may be set in motion by any one.

There is therefore a distinction between these cases and those considered under the last section. There we saw that, subject to the maxim de minimis non curat lex, it was only necessary for the plaintiff to shew that he had actually suffered, and although it was to a small degree, he was entitled to a verdict. In this case if the actual injury is minute, the right of action is taken away.

But if the violation of the right is accompanied by substan- but not the multiplicity tial injury to any member of the community, his right of of suits for action to recover damages in respect of it remains untouched, substantial damages. subject of course to the rules as to remoteness. So if the violation of the right is accompanied by substantial injury to many members of the community their rights of action also remain untouched. The law is not opposed to the multiplying of such suits: "for if men will multiply injuries, actions must be multiplied too, for every man that is injured ought to have Ashby v. White, his recompense."

[Holt, C.J.,

1 Sm: L. C. at p. 292.]

Again, it will be remembered that the last class of duties [ante, p. 7.] mentioned in the preliminary classification were "duties imposed on certain determinate persons towards the rest of the community."

Duties of "one to all "

["The Common Law."]

are also pub. lic duties

["Jurisprudence": pp. 67, et al :]

Austin's statement that there are no rights correlative to absolute duties examined.

Such duties are most usually imposed by statute, and are also aptly described by Mr. Holmes as duties of "one to all." These two expressions, "all to all" and "one to all," convey very accurately the distinction between the two sorts of duties.

This class includes also "public duties"; for the strict meaning of "public duty" seems to be, not a duty laid on all the public, but a duty to all the public. These public duties are what Austin calls "absolute " duties, and his statement in respect of them is that they give rise to no corresponding rights.

There is no authority given for this statement, but it seems to have been based on this rule of law which we are now considering, which takes away the right of action where all, or many, are nominally damaged by breach of the duty; and the inference has been drawn that because there is no remedy there is no right. It is clear however that with regard to the duties of "all to all" the corresponding rights in all individually do exist, because the duties flow from the rights; but it does not seem quite so clear that all individually have rights in the case of the duties of "one to all," because the duties are created first. The rule as to actions is however practically the same. Multiplicity of actions for nominal damages is avoided in both classes; but actions for "special," that is, substantial injuries are allowed, also in both classes, by many or by few.

From the point of view of jurisprudence the question with regard to whether there are rights correlative to these duties is simply this: Is the action for nominal damages in respect of slight injuries taken away, or is the action for substantial injury given? (1).

(1) Another example of the right to recover small damages being taken away is to be found in the practice on interpleader summonses. If the master thinks fit, he may when he makes the order for an issue to be taken, direct that no action shall be brought against the sheriff; that is to say, in respect of the trespass which he has committed, if in the event it turns out that the execution should not have been put in.