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CHAPTER II.

NOMINAL DAMAGES.

BEFORE proceeding to consider the measure of legal compensation in cases where actual loss is sustained, it will be proper to examine the rule of Nominal Damages as contra-distinguished from substantial Damages.

We shall have frequent occasion hereafter to notice that the common law, as a general rule, only gives actual compensation in cases of actual injury. The object of the suit is to obtain remuneration for loss actually sustained. If it appear that though the defendant is in fault, still that the plaintiff is not injured, he can have no relief. It is injuria sine damno. As far back as the Year Books it is said, "If a man forge a bond in my name, I can have no action on the case yet; but if I am sued, I may, for the wrong and damage, though I may avoid it by plea."* And so Lord Hobart, C. J., says, "There must be not only a thing done amisse, but also a damage either already fallen upon the party, or else inevitable."+ Equity often proceeds, quia timet, in the exercise of her preventive powers to arrest the threatened injury, and there were some early but now obsolete proceedings of the same character at law; but, as a general rule, it may at present be considered well settled that the relief of the common law is only to be obtained by those who have suffered actual injury. This proposition is,

* 19 H. 6, 44.

Waterer vs. Freeman, Hobart, 266.

"And note," says Lord Coke, "that there be six writs in law that may be maintained, quia timet, before any molestation, distresse or impleading, as, 1. A man may have his writ of mesne (whereof Littleton here speaks,) before he be distrayned. 2. A Warrantia Cartae before he be impleaded. 3. A Monstraverunt before any distress or vexation. 4. An Audita querela before any execution issued. 5. A Curia Claudenda before any default or molestation. 6. A ne injuste vexes before any distresse or molestation. And these be called brevia anticipantia, writs of prevention."-Coke Lit., 100 a. Story's Equity Jurisprudence, §§ 780 and 825.

however, subject to the modification which we shall now proceed to consider in relation to nominal damages.

Wherever the breach of an agreement or the invasion of a right is established, the English law infers some damage to the plaintiff, and if no evidence is given of any particular amount of loss, it declares the right by awarding what it terms nominal damages, being some very small sum, as a farthing, a penny, or sixpence-Ubi jus, ibi remedium. "Every injury," said Lord Holt, "imports a damage.”* So again, in the same case as elsewhere reported, his lordship said:

"My brother Powell, indeed, thinks that an action upon the case is not maintainable, because here is no hurt or damage to the plaintiff; but surely, every injury imports a damage, though it does not cost the party one farthing, and it is impossible to prove the contrary, for a damage is not merely pecuniary; but an injury imports a damage, where a man is thereby hindered of his right. As in an action for slanderous words, though a man does not lose a penny by reason of the speaking them, yet he shall have an action. So if a man gives another a cuff on the ear, though it cost him nothing, no, not so much as a little diachylon, yet he shall have his action, for it is a personal injury. So a man shall have an action against another for riding over his ground, though it do him no damage, for it is an invasion of his property, and the other has no right to come there."+

"Wherever," says Mr. Serjeant Williams, "any act injures another's right, and would be evidence in future in favor of the wrong doer, an action may be maintained for an invasion of the right without proof of any specific injury."+

In regard to the right invaded, a verdict and judgment for the smallest amount is as effectual as any sum, however large; for it establishes the fact of the plaintiff's title. And in the common case of trespass to lands, the main object usually being to determine the right, this principle becomes very important. In many of these cases it might seem at first sight that the maxim injuria sine damno applied, and that the law would refuse redress. But, as has been clearly said by the Supreme Court of Connecticut, in an action for flowing lands, "An act which occasions no other damage than putting at hazard those rights,

which, if the act were acquiesced in, would be lost by lapse of time, is a sufficient ground of action."*

So, again, it has been said in Maine, speaking of the flowage of lands, "Generally, when one encroaches on the inheritance of another, the law gives a right of action; and even if no actual damages are found, the action will be sustained and nominal damages recovered, because, unless that could be done, the encroachment acquiesced in might ripen into legal right, and the trespasser, by a continuance of his encroachments aoquire a perfect title." In regard to the pecuniary result, the effect of an award of nominal damages depends on the statutes regulating costs, which are usually made to depend on the amount recovered according to the nature of the action; but this branch of the subject will be found more particularly discussed in the treatises on costs.

In an early English case, well known as that of The Tunbridge Wells Dippers,‡ an action on the case was brought by the plaintiffs, who were dippers at Tunbridge Wells, against the defendants for dipping without being duly appointed; and on the subject of damage "there was no proof of the defendant's having received any gratuity other than general evidence, that the employment of dipper is attended with profits which arise from the voluntary contribution of company resorting to Tunbridge Wells." The Court of Common Pleas, in noticing the objection, said: "There is a real damage to the dippers in depriving them of some gratuity which they would otherwise have received, perhaps more than they might truly deserve for their labor and pains. Besides, an action on the case will lie for a possibility of an injury, as for persuading A not to come and sell his wares at the market of B, the lord of the market may have his action."

So, again, subsequently in an action on the case for a surcharge of common, it was held that the plaintiff need not show that he turned on any cattle of his own at the time of the surcharge, but only that he could not have enjoyed his common so beneficially as he might; and Nares, J., commenting on the

* Chapman vs. Thames Manufacturing Co., 13 Conn., p. 269.

+ Hathorne vs. Stinson, 8 Fairf, 183. Seedensparger vs. Spear, 17 Maine, 128. Weller vs. Baker, 2 Wils., 414, Anno 1769.

Dippers' Case, said it was there held that a "probable" damage is a sufficient injury on which to ground an action.* And "probable" is, perhaps, the more correct phrase. An invasion of right being shown, the law holds injury to be a probable result, and therefore gives judgment against the wrong doer. In other words, it presumes some damage to have resulted from the wrong. And the principle was adhered to by the King's Bench in an action on the case for injuries to a right of common, the jury having found a verdict of one farthing, and a motion to set aside the verdict and to enter a nonsuit being denied.+

But in a suit brought by the owner of a house against a lessee for opening a door without leave, the premises not being in any way injured or weakened by the opening, the court refused to allow nominal damages, and remitted the case to the jury to say whether the plaintiff's reversionary interest had, in point of fact, been prejudiced. This case, however, does not present any exception to the general rule, for the court evidently considered that a verdict for nominal damages would have been right if there had been any proof of the plaintiff's title being affected. So, again, in the King's Bench, in an action on the case for the fraudulent imitation of the plaintiff's trade marks; the jury having found a verdict, with one farthing damages, a motion was made to enter a nonsuit, but the rule was refused, and Littledale J., said: "The act of the defendants was a fraud against the plaintiff, and if it occasioned him no specific damage, it was still, to a certain extent, an injury to his right."§

And in the same court, in an action on the case brought by a tenant against his landlord, for illegally distraining for more rent than was due, it appearing that the proceeds of the sale

*Wells vs. Watling, 2 W. Black., 1233, Anno 1779. By this decision a dictum of Lord Coke, in Robert Mary's case, was overruled. 9 Co., 113. "So," says Lord Coke, "that if the trespass be so small that the commoner has not any loss, but sufficient in ample manner remains to him, he shall not have any action for it."

† Pindar vs. Wadsworth, 2 East., 154. We shall hereafter see that this principle does not apply in cases of waste, and that if the damages there be purely nominal, the defendant may enter judgment. Harrow School vs. Alderton, 2 Bos. & Pul., 86.

Young vs. Spencer, 10 B. & Cres., 145.

Blofeld vs. Payne, 4 B. & Adol., 410. 24 E. C. L. R., 87.

were insufficient to satisfy the rent actually in arrears, the jury found a verdict for the plaintiff, with one shilling damages. A motion was made to enter a nonsuit, but it was denied, and Denman, C. J., said: "There was a wrongful act of the defendant, and though by reason of the value of the goods taken falling short of the actual rent due, no real damage was sustained, yet there was a legal damage and cause of action, for which the plaintiff was entitled to a verdict."* This case carries the principle of the English law to its extreme limit; for so far from the plaintiff's having proved any damage, it was conclusively shown that he could not have suffered any; and on the contrary, the defendant was the real loser.

Thus, also, it has been recently held by the English Common Pleas in an action on the case for deceit against the secretary of an insurance company for false representations as to the management and affairs of the company, whereby the plaintiff was induced to effect an insurance with them, though it did not appear that he had sustained any positive loss, that he was entitled to nominal damages.†

The principle has been applied to the diversion of water courses. It has been long held that the riparian proprietor of a stream has a right to the use of its waters, but it has been doubted whether he could recover in an action for its diversion. without showing actual damage. It is now, however, well settled in favor of the right, and if the infringement be established, nominal damages, at least, will in all cases be given.§

The general rule has been recognized by the Supreme Court

*Taylor vs. Heniker, Bart., 12 Adolphus & Ellis, 488, which overruled the cases of Avenell vs. Croker, Moo. & M., 172, and Wilkinson vs. Terry, 1 M. & Rob., 877. See also, Butts vs. Edwards, 2 Denio, 164, where it is said that in case for illegal distress, if no actual damage is sustained, the plaintiff could at most but recover nominal damages.

+ Pontifex vs. Bignold, 3 Scott N. R., 390. The text contains the substance of the marginal note, but it should be noticed that the question came up on demurrer to the plea, that the declaration alleged that the policy was of less value to the plaintiff than if the representations complained of had been true, and that Tindal, C. J., said, "This case ranges itself within Paisley vs. Freeman, 8 T. R., 51, and Haycraft vs. Creasy, 2 East, 92, and that class of cases where it was held, that a false affirmation made by the defendant with intent to defraud the plaintiff, whereby the plaintiff receives damage, is the ground of an action upon the case in the nature of a deceit."

Hill vs. Mason, 5 Barn & Adol., 1.

§ Bowen vs. Hill, 1 Bing, N. C., 549. Parker vs. Griswold, 17 Conn., 288. Plumleigh vs. Dawson, 1 Gilman, 544.