was put to trouble and expense, was held a special damage for which an action would lie. So in Griesley v. Codling, 2 Bing. 263, the being delayed four hours by an obstruction in a highway, and thereby being prevented from performing the same journey as many times in a day as if the obstruction had not existed, was held a sufficient injury to entitle a party to sue the obstructor. In Wiggins v. Boddington, 3 Car. & P. 544, the damage was of the same kind as in Rose v. Miles, and it was holden that the action lay. In Hubert v. Groves, (according to Lord Ellenborough in Rose v. Miles), the damage was no more than common to all. At all events, Rose v. Miles, Griesley v. Codling, and Wiggins v. Boddington, are subsequent decisions, and accord better with the early authorities.

3dly, As to the reduction of damages, this was one continuing damage from the 2d of April to the 2d of July, and the plaintiff is entiled to recover for the whole if any one day be within six months of the day when the action is commenced. And this is in esse of the defendants: for if it were otherwise they would be liable to actions as numerous as the days during which the nuisance

*290] continued. In Roberts v. Read, 16 East, 215, it was held *that though

the general highway act, 13 G. 3, c. 78, s. 81, directs that actions against any persons for any thing done or acted in pursuance thereof shall be commenced within three calendar months after the fact committed, and not afterwards; yet if the surveyors of highways, in the execution of their office, undermine a wall adjoining to the highway, which does not fall till more than three months afterwards, they are subject to an action on the case for the consequential injury within three months after the falling of the wall. And in Gillon v. Boddington, 1 Car. & P. 541, Lord Tenterden acquiesced in the propriety of that decision. Kelly, and Channell, in support of the rule.

1st, The evidence in the cause, and the act of parliament incorporating the company, sufficiently establish that Heel Alley was lawfully stopped up to carry into effect the purposes of the act; and there is nothing in sect. 64, to shew that the making the new avenue was a condition precedent. Under that clause it was only necessary that it should be made within a reasonable time; and for not making it the defendants would be liable to an action, upon the principle established by Henley v. The Mayor of Lyme Regis, 5 Bing, 91; 1 New Cases, 222. The plaintiff, therefore, has misconceived his complaint, in alleging that at the time of the grievance there was a public footway into Craven Court.

Upon the second point, this case cannot be distinguished from Hubert v. Grove. The injury of which the plaintiff complains is one which he sustains in common with every other shopkeeper along the same line of road. If this action can be sustained, commissioners of sewers, or others, who may occasion an obstruction in Fleet Street, and fail to remove it within a time which a *291] jury shall esteem reasonable, would be liable to an action at the suit of every tradesman from Charing Cross to Whitechapel; which, according to the case cited from the Year Books and several of the authorities, would be a conclusive reason against the action.

And the injury here is only indirect and consequential. In Rose v. Miles, Griesley v. Codling, and most of the other cases, it resulted directly and immediately from the tortious act.

At all events, the defendants are entitled to a reduction of damages. Roberts v. Read and Gillon v. Boddington turned on the language of particular acts of parliament. The actions were to be commenced within a certain time after an "act done:" here it is, "after the cause of action shall have arisen;" and no cause of action arose to the plaintiff within six months of the 30th of December, except the causes on the 1st and 2d of July.

TINDAL, C. J. It appears to me, that this rule, except as to that part of it which seeks a reduction of damages, must be discharged. This is an action on the case, in which the plaintiff complains of an injury occasioned to him by the obstruction of a right of way; and he puts on record an allegation of specific

damage to himself as occupier of a shop by the side of an ancient way through Hungerford Market to Whitehall. The declaration alleges that at the time of the committing the grievance by the defendants there was a thoroughfare leading from the Adelphi along divers streets and courts into Craven Court, and thence along other streets and courts into Whitehall, and thence back again, for all persons at all times; that the plaintiff was possessed of a messuage adjoining the said thoroughfare, in which he carried on the business of a bookseller, and made great gains by the sale of books *to persons passing along the [292 thoroughfare; that the defendants wrongfully kept the thoroughfare closed an unreasonable length of time, and during that time thereby prevented the plaintiff from carrying on his business in as beneficial a manner as he otherwise would have done, whereby the plaintiff was deprived of divers gains which would otherwise have accrued to him; and the jury have found that the defendants did continue the obstruction to the plaintiff's right of way an unnecessary length of time, after the 3d of April, 1833.

The first period, therefore, at which the plaintiff was entitled to claim redress, was on the 3d of April, 1833. But it is objected that at that time, the right of way which had formerly existed was stopped and extinguished. I think that is not so; if it were, I agree that a material allegation in the declaration would not have been proved, and the action would fail. The part of the act on which the defendants rely in support of this objection is sect. 64. Except in that clause, the defendants have no peculiar power to stop ways. Looking at that clause, it appears that the construction of a building over certain courts was contemplated, which would obstruct the way in question; and, therefore, the clause authorises the defendants to build on "so much of the places called One Tun Court, Heel Alley, and Charles Court, as are bounded by and included between any of the messuages and buildings therein authorised to be pulled down, and thereby to stop up the way or passage over the same parts of the said courts and alley." The only obstruction, therefore, contemplated in that clause was the obstruction to be occasioned by the new erections: it does not appear, however, on the evidence, that such erections were the cause of the injury of which the plaintiff complains, but that it was occasioned by the defendants keeping up certain hoards an unreasonable length of time; the obstruction, therefore, is not shewn to have been occasioned, or the way to have been stopped, by [*293 the buildings contemplated in sect. 64, but by something accessory to them; something that was done under the defendants' general right to carry into effect the objects of the act; and that right the jury find was exercised to an unreasonable extent. The objection, therefore, that the way in question was already stopped and extinguished under the sixty-fourth section, before the obstruction complained of commenced, is not sustained. It is urged, however, that the plaintiff should have complained, not of the obstruction to his right of way, but of the defendants' omitting to open a new way within a reasonable time. In whichever way the gravamen is alleged, it comes to much the same thing; but it seems to me, that at the time in question it was the obstruction to the plaintiff's right of way that occasioned the loss of which he complained. The obstruction had continued for an unreasonable time, and he had a right to complain of the immediate and proximate cause of his loss.

The next question is, whether this is such a peculiar and private damage to the plaintiff beyond that suffered by the rest of his Majesty's subjects, as to enable him to sustain an action against the defendants. And I think, in conformity with the greater number of the decisions, that it was. The injury to the subjects in general, is, that they cannot walk in the same track as before; and for that cause alone an action on the case would not lie: but the injury to the plaintiff is, the loss of a trade, which but for this obstruction to the general right of way he would have enjoyed; and the law has said from the Year Books downwards, that if a party has sustained any peculiar injury, be yond that which affects the public at large, an action will lie for redress. Is

the injury in the present case of that character or not? The plaintiff, in addi*294] tion to a right of way which he enjoyed in common with others, had a shop on the road side, the business of which was supported by those who passed: all who passed had the right of way; but all had not shops; that is the observation made in Baker v. Moore, cited in Ivison v. Moore, which was an action for stopping a way and preventing the carriage of coals. In Baker v. Moore the refusal of the plaintiff's tenants to remain on the premises was considered a damage sufficiently peculiar and private to entitle the plaintiff to sue the defendant for having erected a wall across a common way used by the tenants. Indeed, for the most part the only question is, whether the injury to the individual is such as to be the direct, necessary, natural, and immediate consequence of the wrongful act. Hubert v. Groves has been relied on on the part of the defendants: but the gravamen there was one which applied equally to all his Majesty's subjects, namely, that they were obliged to go in a more circuitous track, and not one which affected the plaintiff above others: unless that be a sufficient distinction between Hubert v. Groves and the present case, I must yield to the greater authority of the other decisions.

The third objection which has been raised on the part of the defendants is, that this action was not brought in time to entitle the plaintiff to the full amount of damages which the jury have given. Now the cause of action began to accrue on the 3d of April: it ended on the 2d of July; and the action was brought within six months of two days only before the cesser of the cause of action. The words of the act are, "No action is to be brought against any person for any thing done in pursuance of the act, or the powers thereby given, until twenty-eight days' notice shall have been given in writing to the defendants, signed by the attorney of the plaintiff specifying the cause of action; or after tender of amends; or after six months after the cause of action shall have *295] arisen." It appears to me, that though the cause of action began in April, each successive day gave a new cause of action; and though it may be inconvenient to put a plaintiff to sue in such a case de die in diem, we can put no other construction on this clause of the statute. I think, therefore, the plaintiff can recover damages for two days only, and the rule as to the reduction of the damages must be made absolute.

PARK, J. The general principle is what has been stated by my lord. For any injury which affects all his Majesty's subjects in common the only mode of proceeding is by indictment; for any special injury which affects an individual beyond his fellows he may obtain redress by action. I entertain the greatest respect for any opinion of Lord Kenyon; but, looking at the cases for years before and since the decision of Hubert v. Groves, I cannot think that case entitled to the same weight as most of Lord Kenyon's. He nonsuited the plaintiff at the very opening of the cause; and upon the motion for a new trial the question does not appear to have been much discussed. And when we look at Ivison v. Moore, and Baker v. Moore, it is impossible to say that those cases do not sanction the allegation of special damage here. In Baker v. Moore, which tallies more precisely with the present case, the plaintiff was injured by his tenants deserting his houses in consequence of the defendants having erected a wall across a way which they had all a right to enjoy; that is exactly the case here, the customers having left this shop because they could not get at it.

Those cases were previous to Hubert v. Groves. But subsequently, in Rose v. Miles, in consequence of the defendants mooring a barge across a public navigable canal, the plaintiff was obliged to carry his goods overland, at great trouble and expense; and the Court held that a grievance sufficiently special to *296] form the subject of an action. Griesley v. Codling, and Wiggins v. Boddington, are also extremely strong cases in support of the same principle. All these cases were considered in Henley v. The Mayor and Burgesses of Lyme Regis; and it was confirmed by the Court of King's Bench and the House of Lords, that under circumstances such as the present an action will lie.

As to the amount of damages, I am sorry to be obliged to concur in holding, that it must be reduced.

GASELEE, J. I agree with the rest of the Court on two of the questions which have been discussed, but am sorry I cannot concur as to the sufficiency of the declaration. The declaration complains, not of the defendants' stopping up the way, but of continuing the stoppage for an unreasonable length of time, and that during that time the public had a right of way over the locus in que. It appears to me, that, whether properly or not, the way had been stopped be fore the period in which the obstruction is complained of, and that it is incorrect to say, there was at that period a public road over the locus in quo. The precedents in similar cases allege, in general, that the road in question had been stopped up, and that the defendant improperly continued the stoppage.

It strikes me, too, that the gravamen ought to have been, that the defendants did not open a new way within a reasonable time. There is nothing in the act which makes the opening the new way a condition precedent to stopping up the old one.

BOSANQUET, J. Three questions have been raised in this cause: first, whether a right of way existed at the time the defendants continued the tortious obstruction which is the subject of complaint:

2dly, Whether the plaintiff has sustained such a *special and particular injury as can form the ground of an action: and thirdly, whether the damages should be reduced.

[*297

The first objection is altogether technical, and I am sorry that parties in the position of the defendants have resorted to it. I think, however, that it is not well founded. Under the sixty-fourth section of their act, the company had power to obstruct the old way, for a reasonable portion of time, for the purpose of erecting certain buildings; at the end of a reasonable time the obstruction would become unlawful, but the company were not bound to open a new road before they completed the buildings, provided they completed them within a reasonable time. After an unreasonable time, as the jury have found, they make a new way; and the action is for tortiously obstructing the old right of way an unreasonable length of time; that appears to me to be a correct statement of the grievance by which the plaintiff has suffered injury.

As to the second question whether this injury was so special and particular to the plaintiff as to form the ground of an action, the principle on which the question is to be decided is well acknowledged. The difficulty is in the application, and extreme cases may be put, where it is not easy to draw the line be tween private injury and public inconvenience. The principle is, that where an individual sustains an injury from a nuisance beyond that which is felt by the public at large, he may obtain redress by an action, although for the public injury the offender can only be proceeded against by indictment.

The injury of which the plaintiff complains, is, injury to his business as a shopkeeper; he does not complain of being stopped in passing and repassing, as others have been stopped, but that, by the obstruction in question, persons who frequented his shop have been prevented *from approach. It may be that others have also been injured in the same way, and a case has [*298 been put in argument of every individual shopkeeper in a long line of streets suffering a like injury from the same cause. That extreme case, however, does not resemble the present, in which the peculiar injury is put only as accruing to a single individual.

Several authorities have been cited, and among them, Hubert v. Groves has a strong bearing on the present case, because there it was alleged in the declaration that the plaintiff, being possessed of a certain messuage, &c., had enjoyed and was entitled to a certain way from and out of the said messuage, &c., through, along, and over a certain street, called Dean Street, for himself, his servants, &c., to pass and repass, and to carry all things necessary for his business, as a coal and timber merchant." And the declaration then stated, "that

the defendant had deprived him of all benefit, profit, and use of the said way, by laying large quantities of earth and rubbish, by which the way was totally obstructed, and the plaintiff prevented from enjoying his premises and carrying on his trade in so advantageous a manner as he had a right to do, and by which the plaintiff was obliged to carry his coals, timber, &c., by a circuitous and inconvenient way." The plaintiff was nonsuited, and the Court of King's Bench on notice, refused to set the nonsuit aside; we must see, therefore, whether that case has been confirmed, and whether it is supported by the weight of other authorities. Now Baker v. Moore is a very strong case, because there the injury complained of was the departure of the plaintiff's tenants from their several occupations in consequence of the defendant's having built a wall across a way they were entitled to use. For the mere act of obstruction in passing and repassing the plaintiff probably could not have sued; nor could his tenants *299] themselves, as mere occupiers; but the foundation *of the action was, though it rested on an obstruction to passing and repassing, the injury occasioned to the plaintiff by the deterioration of his property. That applies exactly to the present case. And since the decision of Hubert v. Groves we have, in the case of Rose v. Mills, the deliberate opinion of the Court of King's Bench. The act that occasioned the obstruction there, was the mooring of a barge across a navigable creek, and the injury to the individual was the loss and expense occasioned to him by being compelled to convey his goods overland. On that ground he was held entitled to sustain an action. Then in this Court we have the case of Griesly v. Codling, which, as the plaintiff (according to the report in B. Moore) carried on a trade, is the same in effect as Rose v. Mills. On the subject of damages, as the action was commenced within six months of two only of the days on which injury was sustained, I think the damages must be confined to those two days.

Rule absolute for reducing the damages; discharged, as to entering a non

suit.

MUNK v. CLARK. Nov. 20.

A commission of bankrupt having issued against plaintiff, which was invalid for want of a sufficient petitioning creditor's debt, plaintiff applied to a commissioner to appoint an official assignee, to investigate the sufficiency of the debt and take care of the property: defendant having been appointed accordingly, without notice that the commission was disputed, Held, that the application made by the plaintiff did not preclude him from suing the defendant for money received under the commission.

In an action for money had and received by the defendant to the use of the plaintiff, by a special verdict it was found,

That, on the 28th of July, 1824, in the county of Middlesex, a commission *300] of bankruptey issued against the plaintiff on the petition of John Foster, under which commission the plaintiff was declared a bankrupt by the commissioners named in the said commission, and the said J. Foster chosen sole assignee under the commission; that the estate and effects of the plaintiff were assigned to him by the aforesaid commissioners; but that at the time of issuing the commission, the plaintiff was not indebted to the said J. Foster in the sum of 1007. That after the issuing of the commission, the plaintiff disputed the validity of the commission on the ground of the alleged insufficiency of the petitioning creditor's debt: that, on the 23d of January, 1831, the plaintiff applied to one of the commissioners of the Court of Bankruptcy to appoint an official assignee to the said commission, as well for the purpose of investigating the said petitioning creditor's debt, as for the purpose of taking care of property of the estate; and that the said commissioner, on the application of the plaintiff for the appointment of such official assignee, appointed the de

the