defendant for diverting the water, although the plaintiffs had not themselves suffered thereby any actual damage or inconvenience.1

Injuria et Damnum.

Where, however, no right of the plaintiff has been violated and the defendant has merely neglected to do his duty, a different rule prevails. In such a case no one has any right of action unless the duty neglected was a duty owed to him and he has sustained some special and appreciable damage from its neglect. For instance, the breach of a public duty or the omission to do something required to be done by statute would not be actionable at the suit of any one who had sustained no damage in consequence. So, again, mere negligence, mala fides, fraud or misrepresentation will not give a right of action for damages unless actual damage has been thereby caused to the plaintiff. There are also many cases in which a cause of action is created by statute, but given only to those persons who have sustained particular damage. In all such cases injuria and damnum must concur in order to constitute a right enforceable by action.

But there are cases in which even the combination of injuria and damnum will, for special reasons, fail to constitute a ground of action. In the first place there may have been some damage sustained, but it may be such as the law deems too remote, because it is not a sufficiently direct consequence of the illegal act complained of. The defendant's act must be the proximate cause of the damage.

3

Thus, "it is a well-established and settled rule that the underwriter is liable for no loss which is not proximately caused by the perils insured against.' So, in an action of slander when the words used are not actionable per se, the special damage relied upon to support the action must be a legal and natural or reasonable consequence of the words spoken; thus it would not suffice to show that, by reason of them, some third person had been led to commit an assault and battery on the plaintiff. And where a barman was dismissed in consequence of the defendant saying

2

Harrop v. Hirst (1868), L. R. 4 Ex. 43.

Rodgers v. Parker (1856), 18 C. B. 112 ; Lucas v. Tarleton (1858), 3 H. & N. 116 Pickering v. James (1873), L. R. 8 C. P. 489.

3 See Remoteness of Damage, pust. p. 1294.

Per Martin, B., in Rankin v. Potter (1873), L. R. 6 H. L. at p. 143.

Per Lord Ellenborough, C. J., in Vicars v. Wilcocks (1806), 8 East, at p. 4.

to his employer that the barman had left the premises which he occupied without paying his rent, the loss of employment was held to be too remote damage; for it was not the natural and necessary consequence of the defendant's words. Again, where the defendant's servant illegally washed a van in a public street, and owing to a severe frost the waste water froze, and in consequence the plaintiff's horse slipped and broke its leg, it was held that the damage sustained was too remote a consequence of the illegal act to support an action.2

But where the immediate cause of the damage which the plaintiff has sustained is some act on the part of an innocent third person, the defendant will still be liable for the damage if he caused that third person so to act.

This proposition is well illustrated by the case of Scott v. Shepherds There it was held that trespass would lie against the individual who first set a squib in motion, which, after being thrown about in self-defence (and therefore lawfully) by various persons, at last put out the plaintiff's eye. The parties intervening between the plaintiff and the defendant, who acted for their own safety, could not be regarded as free agents; and consequently there was a "chain of effects," which connected the wrongdoer and the injured party and rendered the former responsible for the damage done to the latter by this tortious act.

Again, where the defendant pursued & negro boy with a view to assaulting him, and drove him into the plaintiff's shop, where damage was done by the negro to a cask of wine, it was contended that the defendant was not liable, inasmuch as the damage was occasioned, not directly by him, but by the negro boy, who, it was said, was a free agent; the Court, however, took a different view of the matter upon the old general rule that when "one does an illegal or mischievous act, which is likely to prove injurious to others, and when he does a legal act in such a careless and improper manner that injury to third persons may probably ensue, he is answerable in some form of action for all the consequences which may directly and naturally result from his conduct." The fact that the defendant had no intention of damaging the cask of wine was regarded as immaterial. The defendant was doing an unlawful act, and was legally liable for all direct consequences of that act, although he had not contemplated them."

So where the defendant had unlawfully placed a chevaux de frise across a public highway, and a third party had without his knowledge or consent removed it on to the footpath, it was held that the defendant was liable for injury resulting to a person lawfully using the footpath, notwithstanding the fact that the intervention of the third party was the immediate cause of the accident.5

1 Speake v. Hughes, [1904] 1 K. B. 138.

2 Sharp v. Powell (1872), L. R. 7 C. P. 253.

(1773), 2 W. Bla. 892; 1 Smith, L. C., 12th ed., 513.

Vandenburgh v. Truax (1847), 4 Denio (U. S.) R. 464; and see Guille v. Swan

(1822), 19 Johns. (U. S.) R. 381.

Clark v. Chambers (1878), 3 Q. B. D. 327: and see Lawrence v. Jenkins (1873). L. R. 8 Q. B. 274; Parry v. Smith (1879), 4 C. P. D. 325.

Again, the law gives no private remedy for anything but a private wrong. Hence, if the defendant's wrongful act be in its nature criminal, no private person can bring an action against him for that wrongful act, unless he has suffered some special damage over and above that which the rest of the public have sustained. In the absence of such particular damage no action will lie, although there is both a wrongful act and general inconvenience resulting therefrom.

Take, for instance, the case of a public nuisance. This is an indictable offence for which, prima facie, no action lies, but an indictment only, because the damage is common to all the King's subjects, and it would be extremely hard if every person in the kingdom were allowed to harass the offender with a separate action. But an action will lie, if the plaintiff's health has been injured, or if his fish have been poisoned, or if he has sustained any other special damage not shared by the rest of the public. Accordingly, there is a "diversitie" between the mode of procedure for disturbance of a private and of a public way in the former case, "the law doth give unto the landowner, whose right or easement is disturbed, an action for recovery of damages; but if the way be a common way and if any man be disturbed in going that way, or if a ditch be made across it so that he cannot go, yet he shall not have an action; and this the law has provided for avoiding of multiplicity of suits."1 But if a man lawfully using a highway falls into a ditch illegally made across it and breaks his leg, he can bring an action for the particular damage which he individually has sustained.

:

Where the Crown, for the benefit of the public, has made a grant imposing certain public duties, and that grant has been accepted, the public may enforce the performance of those duties by indictment and individuals peculiarly injured by action.2

Where a duty is created for the benefit of the public by Act of Parliament, and a specific remedy is thereby provided for a breach of the duty, it must be a question of construction whether the specific remedy was intended to be substituted for or to be provided in addition to the common law remedy by indictment for the public or by action for an individual who sustains a special or particular injury.3

Where an Act of Parliament imposes a penalty on any one violating its provisions, but enacts that no proceeding for recovery of such penalty shall be taken by any person other than a party aggrieved without the consent in writing of the Attorney-General, a plaintiff suing without such consent will be required to show that his private interests have been affected by

1 Sir Edward Coke, 1 Inst. 56 a.

Henley v. The Mayor of Lyme Regis (1834), 2 Cl. & F. 331; and see Geddis v. Proprietors of Bann Reservoir (1878), 3 App. Cas, 430, and the judgment of Bowen, L. J., in Rateliffe v. Evans, [1892] 2 Q. B. at pp. 528, 529.

3 Borough of Bathurst v. Macpherson (1879), 4 App. Cas. 268.

B.C L.

27

the act complained of, and that he has been thereby specially aggrieved, and not merely as one of the public.1

4

There is yet another class of cases, in which considerations of general expediency or public policy forbid our Courts to interfere or to allow any redress, although the act was tortious. Thus an action will not lie against a commanding officer for anything done by him in the course of his naval or military duty or incidental thereto; 2 so, too, the ratification by the Crown of a trespass committed by one of its officers in the public service against an alien renders it no longer actionable; again, a colonial Act of indemnity may neutralise the tortious quality of an act. The exemption from liability of officers carrying out Government orders rests upon this ground, that their conduct under such circumstances is an act of state, for which public policy forbids that they should be held responsible; for if "the King can do no wrong," that is, cannot be held responsible for his acts to a Court of law, neither can they who properly execute his orders or those of his Government, and their acts, if approved and ratified by the Government, become "acts of state."5 No action will lie for any act done in the honest exercise of naval or military authority. Naval and military matters are for naval and military tribunals to determine, and not the ordinary civil Courts."

Again, resting strictly on grounds of "public policy" is the non-liability of judicial officers for damage resulting from anything said or done by them in that capacity. No action will lie against a judge of a Superior Court for any acts done or words spoken in his judicial capacity, whether in court or at judge's chambers. So any act done or words spoken by

1 Boyce v. Higgins (1853), 14 C. B. 1; Bradlaugh v. Clarke (1883), 8 App. Cas. 354. 2 Johnstone v. Sutton (1786), 1 T. R. 493, 510, 784; Dawkins v. Lord Rokeby (1875), L. R. 7 H. L. 744; Dawkins v. Lord Paulet (1869), L. R. 5 Q. B. 94; Chatterton v. Secretary of State for India, [1895] 2 Q. B. 189.

8 Buron v. Denman (1848), 2 Exch. 167; and see Marais v. General Officer Commanding, [1902] A. C. 109; Ex parte Mgomini (1906), 94 L. T. 558. It is otherwise, if the trespass was committed against a British subject: Walker v. Baird, [1892]

A. C. 491.

Phillips v. Eyre (1869), L. R. 4 Q. B. 225;

5 Rogers v. Dutt, 13 Moo. P. C. C. 209, 236.

(1870), L. R. 6 Q. B. 1.

6 Hart v. Gumpach (1872), L. R. 4 P. C. 439; Grant v. Secretary of State for India (1877), 2 C. P. D. 445; Heddon v. Erans (1919), 35 Times L. R. 642.

Fray v. Blackburn (1863), 3 B. & S. 576; Taaffe v. Downes (1812), 3 Moo.

P. C. C. 36, 1.; Anderson v. Gorrie, [1895] 1 Q. B. 668.

the judge of an Inferior Court of record in discharge of his duties and within his jurisdiction is a judicial act, and is therefore protected. But he will be liable as an ordinary subject for any acts done or words spoken in any proceeding which he knew or ought to have known was outside his jurisdiction. "English judges, when they act wholly without jurisdiction, whether they may suppose they had it or not, have no privilege."

112

It is enough if the defendant was acting as a judge; he need not prove that he was acting as a judge ought to act ; questions of judicial propriety are not to be submitted to a jury. The honesty and integrity of one of our judges when acting in his judicial capacity cannot be brought in question by an action for damages, though of course, if a mistake be committed by him in point of law, his decision may be reviewed in a Court of appeal.

3

"The law doth so much respect the certainty of judgments and the credit and authority of judges, as it will not permit any error to be assigned that impeacheth them in their trust and office, and in wilful abuse of the same, but only in ignorance and mistaking either of the law or of the case and matter in fact." "No action will lie against a judge for what he does judicially, though it should be laid falsò malitiosè et scienter. They who are entrusted to judge ought to be free from vexation, that they may determine without fear; the law requires courage in a judge, and therefore provides security for the support of that courage." Therefore, "by the law of England, if an action be brought against a judge of record for an act done. by him in his judicial capacity, he may plead that he did it as a judge of record and that will be a complete justification." 5

4

The reason for this exemption from liability is obvious. It is necessary to the free and impartial administration of justice that those who have been appointed to dispense it "should be uninfluenced by fear and unbiassed by hope. Judges have not been invested with this privilege for their own protection merely; it is calculated for the benefit of the people by insuring to them a calm, steady and impartial administration of justice."6

Again, Lord Tenterden lays down as a general rule of very great anti1 Scott v. Stansfield (1868), L. R. 3 Ex. 220.

Per cur. in Calder v. Halket (1839), 3 Moo. P. C. C. at p. 75; and see Houlden v. Smith (1850), 14 Q. B. 841.

Lord Bacon's Maxims, 17; and see Floyd v. Barker (1607), 12 Rep. 23.

Per North, C. J., in Barnardiston v. Soame (1674), 6 St. Tr. at p. 1096.

* Per Lord Mansfield, C. J., in Mostyn v. Fabrigas (1774), 1 Smith, L. C., 12th ed. at p. 675.

Per Fox, J., in Taaffe v. Downes (1812), reported in the note to Calder ▾. Halket (1839), 3 Moo. P. C. C. at pp. 51, 52.