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sufficiently vindicates the plaintiff's right (z). It is not, however, true, that the actual injury is, in every case, the proper measure of damages to be given; for instance, my neighbour may take from under my house coal, which I may have no means of getting at, and yet I may recover the value notwithstanding I have sustained no real injury (@).

The maxim, however, ubi jus ibi remedium, though generally, is not universally true, and a great variety of cases occur to which it does not apply, or at least in which the remedy cannot be in the shape of a civil action to recover damages for the injury sustained. Some of these are cases in which the act done is a grievance to the entire community, no one of whom is injured by it more than another. In such a case, the mode of punishing the wrongdoer is by indictment only (b); although, if any person has suffered a particular damage, beyond that suffered by the public, he may maintain an action in respect thereof: thus, if A. dig a trench across the highway, this is the subject of an indictment; but if B. fall into it and sustain a damage, then the particular damage thus sustained will support an action (c).

Cases in does not hold. indictment.

which maxim

Remedy by

remote.

Again, where the damage resulting from the act of another Damage, too is too remote (d), or, in other words, flows not naturally and directly from the alleged injury, the plaintiff will not be entitled to recover (e); for instance, in an action for slander, the

(z) 3 Steph. Com. 463, 464. See Blofield v. Payne, 4 B. & Ad. 410; Wells v. Watling, 2 W. Bla. 1233; Pindar v. Wadsworth, 2 East, 154.

(a) See per Maule, J., Clow v. Brogden, 2 Scott, N. R., 315, 316; per Ld. Denman, C. J., Taylor v. Henniker, 12 A. & E. 488, 492; Pontifex v. Bignold, 3 Scott, N. R., 390.

(b) Co. Litt. 56. a.

(c) Ib.; per Holt, C. J., Ashby` v. White, 2 Ld. Raym. 955; ante, p. 4.

(d) Com. Dig. "Action upon the Case for Defamation," (F. 21). See Martinez v. Gerber, 3 Scott, N. R., 386.

(e) 3 Steph. Com. 465; per Patteson, J., Kelly v. Partington, 5 B. &

H

Motives of policy.

special damage must be the legal and natural consequence of the words spoken, otherwise it will not sustain the declaration. It is not sufficient to prove a mere wrongful act of a third person induced by the slander, as, that he dismissed the plaintiff from his employ before the end of the term for which they had contracted, for this is an illegal act, which the law will not presume to be a natural result of the words spoken (f). So, where the plaintiff, being director of certain musical performances, brought an action on the case against the defendant, for publishing a libel on a public singer, engaged by the plaintiff, alleging, that she was thereby debarred from performing in public through the apprehension of being ill received, so that the plaintiff lost the profits which would otherwise have accrued to him as such director, it was held, that the damage was too remote, and the action not maintainable (g).

There are also cases in which it has been adjudged, that an action on the case for a malicious prosecution will not lie, though the act complained of be admitted to be malicious; as, at the suit of a subordinate against his commanding officer, for an act done in the course of discipline and under the powers legally incident to his situation, notwithstanding that the perversion of his authority is made the ground of the action; and the principle of all such cases is, that the law will rather suffer a private mischief than a public inconvenience (h). Again, no action at law lies to recover damages from an executor for not paying a legacy (i), nor by a cestui que trust against a trustee for breach of trust (k), nor for disturbance of a pew in the body of the

Ad. 651; Bac. Abr. "Actions in Ge-
neral," (B).

(f) Vicars v. Wilcocks, 8 East,
1. See Knight v. Gibbs, 1 A. & E.
43; Ward v. Weeks, 4 M. & P.
796.

(g) Ashley v. Harrison, 1 Esp. 48. (h) Johnstone v. Sutton (in error), 1 T. R. 512, 548.

(i) Broom's Parties to Actions, 118.

(k) See Id. 1, 2.

church, unless attached to a house (7): in these cases, there are remedies, but not by actions in the courts of common law (m); and we have already seen, that, from motives of public policy, the sovereign is not personally answerable for negligence or misconduct; and, if such misconduct occurs in fact, the law affords no remedy. We may, moreover, add, that a mandamus will not lie to the Crown, or its servants, strictly as such, to compel the payment of claims on the Crown (n).

act is feloni. ous.

Lastly, where the act of another, though productive of Where the injury to an individual, amounts to a felony, the private remedy is suspended (o) until justice shall have been satisfied; for public policy requires that offenders against the law shall be brought to justice; and, therefore, it is a rule of the law of England, that a man shall not be allowed to make a felony the foundation of a civil action (p); but for a mere misdemeanour, such as an assault, battery, or libel, the right of action is subject to no such impediment (q).

COMMUNIS ERROR FACIT JUS. (4 Inst. 240).- Common error may in some cases pass current as law.

ample.

The law so favours the public good, that it will in some Rule and excases permit a common error to pass for right (r).

(1) Mainwaring v. Giles, 5 B. & Ald. 356.

(m) Quære, whether, under any circumstances, an action at law lies against a clergyman for refusing to perform the marriage ceremony? (Davis v. Black, 1 Q. B. 900).

(n) Ante, p. 25; Viscount Canterbury v. Reg., 7 Jurist, 224, 227; In re Baron de Bode, 6 Dowl. P. C. 776.

As an

(0) Ante, p. 70; Crosby v. Leng, 12 East, 409. As to the restitution of stolen property, see stat. 7 & 8 Geo. 4, c. 29, 8. 57.

(p) Judgment, Stone v. Marsh, 6 B. & C. 564; Crosby v. Leng, 12 East, 409.

(9) 3 Steph. Com. 465.

(r) Noy, Max., 9th ed., p. 37; 4 Inst. 240.

Rule must be qualified.

instance of which may be mentioned the case of common recoveries, which were fictitious proceedings, introduced by a kind of pia fraus to elude the statute de donis, and which were at length allowed by the courts to be a bar to an estate tail, so that these recoveries, however clandestinely introduced, became by long use and acquiescence a most common assurance of lands, and were looked upon as the legal mode of conveyance whereby tenant in tail might dispose of his lands and tenements (s).

However, the above maxim, although well known, and therefore here inserted, must be received and applied with very great caution.

"It has been sometimes said," observed Lord Ellenborough, "communis error facit jus; but I say, communis opinio is evidence of what the law is not where it is an opinion merely speculative and theoretical, floating in the minds of persons, but where it has been made the groundwork and substratum of practice (t)." So it was remarked by another learned and distinguished judge (u), that he hoped never to hear this rule insisted upon, because it would be to set up a misconception of the law in destruction of the law.

And, lastly, some valuable strictures on the practical application and value of the same rule were made by Lord C. J. Denman, delivering judgment in the House of Lords, in a very recent case, involving some most important legal and constitutional doctrines; in the course of which judgment, which is well worthy of careful perusal, his Lordship took occasion to remark, that a large portion

(8) Noy, Max., 9th ed., pp. 37, 38; 2 Bla. Com. 117; Plowd. 33 b. (t) Isherwood v. Oldknow, 3 M. & S. 396, 397; per Vaughan, B., Garland v. Carlisle, 2 Cr. & M. 95;

Co. Litt. 186. a.

(u) Mr. Justice Foster, cited per Ld. Kenyon, C. J., Rex v. Eriswell, 3 T. R. 725; and argument, Smith v. Edge, 6 T. R. 563.

of that legal opinion which has passed current for law falls within the description of "law taken for granted;" and that, "when, in the pursuit of truth, we are obliged to investigate the grounds of the law, it is plain, and has often been proved by recent experience, that the mere statement and re-statement of a doctrine-the mere repetition of the cantilena of lawyers—cannot make it law, unless it can be traced to some competent authority, and if it be irreconcileable to some clear legal principle" (x).

QUOD REMEDIO DESTITUITUR IPSA RE VALET SI CULPA ABSIT. (Bac. Max., reg. 9).—That which is without remedy, avails of itself if there be no fault in the party seeking to enforce it (y).

plained.

There are certain extra-judicial remedies as well for real Rule exas personal injuries, which are furnished or permitted by the law, where the parties are so peculiarly circumstanced as not to make it possible to apply for redress in the usual and ordinary methods (z).

"The benignity of the law is such," observes Lord Bacon, "that, when, to preserve the principles and grounds of law, it deprives a man of his remedy without his own fault, it will rather put him in a better degree and condition than in a worse; for if it disable him to pursue his action, or to make his claim, sometimes it will give him the thing itself by operation of law without any act of his own; sometimes it will give him a more beneficial remedy " (a).

(x) Lord Denman's judgment in O'Connell v. Reg., edited by Mr. Leahy, p. 28. See also the allusions to Hutton v. Balme, ante, and Reg. v. Millis (in error), 8 Jurist, 717; Id., pp. 23,

24.

(y) See Branch, Max., 5th ed., 186.

(z) 3 Steph. Com. 380; 3 Bla. Com. 18.

68.

(a) Bac. Max., reg. 9; 6 Rep.

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