the sender, is clear: see the cases collected in Prince Albert v. Strange, 1 M'N. & G. 25.

ERLE, C. J.-We will confer with my Brother Channell before granting a rule. Cur. adv. vult. *ERLE, C. J., now said: In this case my Brother Channell,

*141] in his summing up, laid down the law to be, that, in the case of letters, the paper at least becomes the property of the person receiving them. So far as concerns the "copyright," it may be that that is in the writer. But it is a very different question whether the property in the letters passes to the person to whom they are addressed. In many matters of business, it is of the highest importance that the receiver of the letter should have the right to keep it. We are of opinion that the learned Judge laid down the law correctly when he told the jury that the property at least in the paper was in the receiver. Then the question of fact was, whether the letters had been given back by the plaintiff to the defendant so as absolutely to pass the property in them to him, or whether they were merely handed to the defendant as bailee for the plaintiff, with a duty to return them when demanded. The evidence as to that was extremely conflicting. That being so, it was for the jury to say to which side they gave credit; and, the learned Baron reporting to us that he is not dissatisfied with the conclusion they came to, we see no ground for interfering.

In Eyre v. Higbee, 15 Howard's Practice Reports 45, the Supreme Court of New York held that the receiver of letters has a property qualified only by the writer's right to restrain their publication. Upon appeal (22 Id. 198), it was decided that though letters without literary value pass to the executor or administrator of the

Rule refused.

receiver, yet they are not assets in his hands, and cannot be made the subject of sale or assignment by him. They belong to widow or next of kin.

As to question of "copyright," see Woolsey v. Judd, 4 Duer (N. Y.) 379 (1855), s. c., 11 Howard's Practice Reports 49, where the cases are reviewed and elaborately discussed.

*142]

*HOEY v. FELTON. Nov. 18.

The defendant caused the plaintiff to be apprehended upon an unfounded charge, and to be detained from past 1 until 2 o'clock. In support of a claim for special damage in an action for false imprisonment, the plaintiff proved that he would have been engaged as a journeyman by one J. S., if he had presented himself at the factory at 2 o'clock on the day in question; but that, being unwell from the treatment he had received, he went home, and did not go to the factory until the next morning, when he found that his intended employer had engaged another

man:

Held, that this damage was too remote.

THIS was an action for false imprisonment and for slander. The cause was tried before Willes, J., at the first sitting in London in this term. The facts were as follows:-The plaintiff, who was a cigarmaker, at half-past one o'clock on the day in question went to the defendant's shop for refreshment, in payment for which he tendered a piece of money which was found to be bad; and thereupon the defendant used the slanderous words alleged in the second count, and ultimately gave him into custody, and detained him for half an hour,

which was the charge contained in the first count. The special damage alleged in the declaration was, that, by reason of the imprisonment and of the speaking of the words, the plaintiff had lost an engagement as journeyman to a cigar manufacturer.

In support of this allegation of special damage, Thomas, Serjt., on behalf of the plaintiff, tendered evidence to show, that the plaintiff was engaged as journeyman at a cigar manufactory, where he should have presented himself at two o'clock; but that he was so unwell in consequence of the treatment he had received at the hands of the defendant, that he was obliged to go home; and that, on presenting himself at the factory on the following morning, he found that his intended employer had taken another man, and consequently he lost his engagement.

On the part of the defendant it was objected that this was too remote a damage: and so the learned Judge ruled,—likening the case to that of a farrier who in shoeing a traveller's horse so unskilfully drove a nail into the hoof as to lame the animal, whereby his owner was unable to reach the house of a relative in *time, and so lost a legacy and accordingly the evidence was rejected.

[*143 A verdict was found for the plaintiff, damages 20s., on the first count, and 10s. on the second.

Thomas, Serjt., on a former day in this term, moved for a new trial, on the ground that the evidence of special damage was improperly rejected. The loss of his engagement by the plaintiff was the immediate consequence of the wrongful acts of the defendant, and therefore the evidence as to the circumstances of that engagement was improperly rejected. [BYLES, J.-The rule is laid down with tolerable accuracy by Pollock, C. B., in Rigby v. Hewitt, 5 Exch. 240,† thus,"Generally speaking, where an injury arises from the misconduct of another, the party who is injured has a right to recover from the injuring party for all the consequences of that injury. I am, however, disposed not quite to acquiesce to the full extent in the proposition that a person is responsible for all the possible consequences of his negligence. I wish to guard against laying down the proposition so universally but of this I am quite clear, that every person who does a wrong is at least responsible for all the mischievous consequences that may reasonably be expected to result, under ordinary circumstances, from such misconduct.(a)] In Hartley v. Herring, 8 T. R. *130, in an action for consequential damage from slander im[*144 puting incontinence to the plaintiff, it was held to be enough to state that he was employed to preach to a dissenting congregation at a certain licensed chapel situated at A.; that he derived considerable profit from his preaching; and that, by reason of the scandal, persons

(a) In Greenland v. Chaplin, 5 Exch. 243, 248,† the same learned judge says,-" It occurs to me there is considerable doubt,-and at present I guard myself against being supposed to decide with reference to any case which may hereafter arise; but, at the same time I am desirous that it may be understood that I entertain considerable doubt whether a person who is guilty of negligence is responsible for all the consequences which may under any circumstances arise, and in respect of mischief which could by no possibility have been foreseen and which no reasonable person would have anticipated. Whenever that case shall arise, I shall certainly desire to hear it argued, and to consider whether the rule of law be not this, that a person is expected to anticipate and guard against all reasonable consequences, but that he is not by the law of England expected to anticipate and guard against that which no reasonable man would expect to occur."

frequenting the chapel had refused to permit him to preach there, and had discontinued giving him the profits which they usually had and otherwise would have given,-without saying who those persons were, or by what authority they excluded him, or that he was a preacher duly qualified according to the 10 Ann. c. 2. It can hardly be said that the damage there was not less remote than that in the present case. So, in Ingram v. Lawson, 6 N. C. 212 (E. C. L. R. vol. 37), 1 Scott 471, a statement in a newspaper that a ship of which the plaintiff was owner and master, and which he had advertised for a voyage to the East Indies, was not a seaworthy ship, and that Jews had bought her to take out convicts, was held to be a libel on the plaintiff in his trade and business, for which he might recover damages, without proof of malice or allegation of special damage. [ERLE, C. J.In both those cases the damage,-the loss of congregation in the one, and of passengers in the other, was the proximate consequence of the slanderous statement. But how can the loss of an anticipated engagement be said to be the natural and proximate consequence of the acts of this *defendant?] In Archer v. Williams, 2 Car. & K. 26 (E. *145] C. L. R. vol. 61), which was an action for the wrongful detention of railway scrip, whereby the plaintiff had been damnified from the fluctuation of the market, and was deprived of the means of paying up his deposits, which would have entitled him to claim an allotment of one hundred other shares,-Cresswell, J., directed the jury that "the measure of damages is, the highest sum the scrip could have been sold for from the time of the detention till the time it was returned. The plaintiff is entitled to the full amount. A wrongdoer cannot be let off with less than that. The very point had arisen in a recent case at Liverpool, where some corn had been detained by the officers of the customs. As for the loss sustained by the plaintiff from the non-allotment of the one hundred shares, he cannot obtain damages for that; it is too remote." [BYLES, J.-The fluctuation of the share-market may well be considered to be the ordinary and accustomed state of things.] He also referred to Sedgwick on Damages, 2d edit. 80, et seq. Cur. adv. vult.

ERLE, C. J., now delivered the judgment of the Court:(a)In this case, Serjeant Thomas moved for a rule nisi for a new trial, on the ground of the improper rejection of evidence. The plaintiff in the count for false imprisonment showed that the defendant imprisoned him about half past one o'clock, and detained him till after two o'clock and for special damage he tendered evidence to show that he would have been taken into the employ of a cigar manufacturer if he had appeared at *two o'clock at the factory; but, being unwell

*146] in consequence of the imprisonment, he had returned to his

home, and, on applying at the factory on the following morning, found that the place was filled up. The judge decided that this damage was too remote, and rejected the evidence.

My Brother Thomas contended that it was not too remote: and he referred to some cases; as, where a minister was allowed to show that his congregation had diminished by reason of the slander of the defendant, Hartley v. Hemming, 8 T. R. 1; and where the captain of a passenger ship showed that he had lost passengers by the defendant's (a) The only judges present at the argument were Erle, C. J., and Byles, J.,-Williams, J., and Keating, J., being engaged in the Court of Criminal Appeal.

description of his ship,-Ingram v. Lawson, 6 N. C. 212 (E. C. L. R. vol. 37), 8 Scott 471, and other cases.

In these cases, the damage was the proximate result of the defendant's wrong. In the present case, we think it was too remote. The damage does not immediately, and according to the common course of events, follow from the defendant's wrong: they are not known by common experience to be usually in sequence. The wrong would not have been followed by the damage, if some facts had not intervened for which the defendant was not responsible. Thus, there was the act of the plaintiff, who returned home instead of going to the factory and explaining: and, although it was said he was unwell by reason of the imprisonment, it was not suggested that he was so unwell as to be unable to go. There was also the act of the intended employer, changing his purpose in respect of the plaintiff, and making an engagement with another person.

In Vicars v. Wilcocks, 8 East 1, the defendant was held not liable either for the wrongful act of a third party, or the arbitrary choice of a fourth party detrimental to the plaintiff, but not proximately caused by the defendant's wrong. In Boyce v. Bayliffe, 1 [*147 Campb. 58, the defendant imprisoned the plaintiff at the Cape of Good Hope, and the plaintiff transhipped himself at St. Helena for 1007. for England, rather than continue in the ship with the captain who had imprisoned him: but the damage of 1007. was held to be too remote, arising from an act of the plaintiff too remote in time and place from the defendant's wrong: and there the case of the midshipman who by being detained on shore alleged that he had lost the lieutenancy which he would have gained if he had been afloat, was referred to by Lord Ellenborough as an example of too great remoteness. The subject of remoteness of damage is considered, and the cases thereon are collected and arranged in Mr. Maine's Treatise on Damages, p. 14, et seq., with clearness and force; and we refer thereto in support of our judgment. Rule refused.(a)

(a) Gibbons (who was with Thomas, Serjt.) on a subsequent day applied for leave to appeal; but the Court said they did not think it a fit case for an appeal.

Selden, J., speaking of damages from breaches of contract where the same principle applies, says: "In such cases, the damages sustained are disallowed, not because they are uncertain, nor because they are merely consequential or remote, but because they cannot be fairly considered as having been within the contemplation of the parties at the time of entering into the

contract.

Hence the objection is removed, if it is shown that the contract was entered into for the express purpose of enabling the party to fulfil his collateral agreement, or perform the act supposed." He accordingly held

that damages which consist in the loss of the use of the very article which defendant agreed to construct, may be recovered. Thus average rent for the use of machinery, whose operation was suspended by delay in building a steam-engine, was recoverable: Griffin v. Colver, 2 Smith (N. Y. Court of Appeals) 489; also Wade v. Haycock, 1 Casey (Pa.) 382; Reany v. Culbertson, 9 Harris (Pa.) 507. And a carrier is liable for the amount of premium which plaintiff proves he would have won, had his plans and specifications been forwarded to their destination in time for competition: Adams Express Co. v. Egbert, 12 Casey (Pa.) 360.

*148]

*GOODING v. BRITNALL. Nov. 22.

A certificate in the following words,-"I certify that the trespass or grievance in respect of which this action was brought was not wilful or malicious,"-is of no avail to deprive a plaintiff of costs under the 34th section of the Common Law Procedure Act, 1860.

The judge has no power to certify under the statute, where a right, though a small one, is really in issue.

THIS was an action for breaking and entering land of the plaintiff at Clapton, in the parish of Hackney, in the county of Middlesex, and ejecting the plaintiff therefrom, and destroying his French beans thereon growing.

The defendant pleaded not guilty, and that the land was not the land of the plaintiff, whereupon issue was joined.

At the trial before Erle, C. J., at the sitting in Middlesex after last term, the plaintiff succeeded in establishing a tenancy at will, and that he had been forcibly expelled without notice. The jury thereupon returned a verdict for him with 40s. damages; and his Lordship certified under the 34th section of the Common Law Procedure Act, 1860, 23 & 24 Vict. c. 126, (a) as follows:

"I certify that the trespass or grievance in respect of which this action was brought was not wilful or malicious."

Application having been made to Erle, C. J., to *rescind his *149] certificate on the ground that it had been improvidently made, his Lordship referred the matter to the court.

David Keane now moved for a rule to show cause why the plaintiff should not have his costs notwithstanding the certificate, which, he submitted, the Lord Chief Justice had no power to grant, the title to the land having been in question. To be of any avail, the certificate under this act must be made immediately after the verdict is pronounced: nothing which may influence his mind is to intervene between the trial and the giving of the certificate. The certificate is to contain three distinct allegations,-first, that the action was not really brought to try a right besides the mere right to recover damages, secondly, that the trespass or grievance in respect of which the action was brought was not wilful and malicious,-and, thirdly, that the action was not fit to be brought. Unless the certificate can negative all these, it is of no avail: Saunders v. Kirwan, 10 C. B. N. S. 514 (E. C. L. R. vol. 100). Here, the Lord Chief Justice could not negative that the action was brought to try a right: it was brought to try whether or not there was a valid tenancy.

Gordon Allen showed cause in the first instance.-[ERLE, C. J.—I could not certify that the action was not really brought to try a right, though I considered it one of so shadowy a kind that the plaintiff was not entitled to costs if I could deprive him of them.] If, as was held

(a) Which enacts, that, "when the plaintiff in any action for an alleged wrong, in any of the superior courts, recovers by the verdict of a jury less than 57., he shall not be entitled to recover or obtain from the defendant any costs whatever in respect of such verdict, whether given upon any issue or issues tried, or judgment passed by default, in case the judge or presiding officer before whom such verdict is obtained shall immediately afterwards certify on the back of the record, or on the writ of trial or writ of inquiry, that the action was not really brought to try a right besides the mere right to recover damages, and that the trespass or grievance in respect of which the action was brought was not wilful and malicious, and that the action was not fit to be brought."