Odger's English Common Law

INJURIA SINE DAMNO. 413
name. Often, too, a man's livelihood depends on his reputation. When-
ever, therefore, the defendant has written and published words which injure
the reputation of the plaintiff, an action will lie without proof of any
pecuniary loss.
But the law is different where the words are merely spoken. Unless it
is clear from the words themselves that they must have substantially
injured the plaintiff's reputation, the Court requires proof of some special
damage which the plaintiff has sustained as the direct consequence of
the words having been uttered. Where the injury to the plaintiff's
reputation is not obvious, he must prove that he has in fact sustained
some appreciable damage for which compensation can be assessed. But
where the words affect a man in his means of livelihood, or charge him with
the commission of a crime, or impute adultery or unchastity to a woman
or girl, they are said to be " actionable per se," though merely spoken ;
and no special damage need be proved. 1
A good illustration of the application of the rale that an action will lie
for injuria sine damno is afforded by the well-known case of Ashby v.
White. 2 This was an action brought by a pauper against a returning officer
for maliciously refusing to receive his vote at an election of Members of
and it was held by Lord Holt, C. J., and the House of Lords,
Parliament ;
that the action well lay, although the candidates in whose favour the vote
had been tendered were in fact elected. The plaintiff had a legal right to
give his vote, and an action therefore lay against the person who prevented
him from exercising that right.
So an action will lie against a banker, who has sufficient funds in his
hands belonging to a customer, and yet refuses to honour his cheque, even
though the customer does not thereby sustain any actual loss or damage.
Such an action lies in tort for the breach of duty cast by the custom of
trade upon a banker ; but it might also be founded upon the contract
implied by law as existing between a customer and his banker that the
latter will pay cheques drawn by the former, provided he has in his hands
sufficient funds for that purpose. For a breach of such duty substantial
damages may be awarded. 3
Again, in Fray v. Vow Zes, 4 a lady sued her attorney for staying, con-
trary to her directions, two actions which she had brought. The defendant
pleaded that in so doing he had " acted in a reasonable and careful manner,
and in obedience to and in accordance with the advice, opinion and dis-
cretion of certain counsel learned in the law, then retained and employed
by the plaintiff." But this was held to be no defence to the action ; for
" a retainer to sue, with positive directions not to compromise, makes it
the duty of the attorney not to compromise; and if he does so, it is a
breach of his duty," for which, whether the action be shaped in contract
1 See post, pp. 522— S2.-i.
2 (1703), 2 Lord Raym. 938, 953 ; 14 St. Ti. 695 ; 1 Smith, L. C, 12th ed., 266 ;
and Bee Jefferyev. Botuey (1854), 4 H. L. Uas. 816.
8 Marzetti v. Williams (1830), 1 B. & Ad. 415; Robin and another v. Steward,
P 0. (1851), 14 C. B. 595 ; Gray v. Johnston (1868), L. R. 3 H. L. 1 ; and see
Frost v. London J,nnt Stock Bank (19061. 22 Times L. R. 760.
' (1859), 1 E. & E. 839 ; and see Lovegrore v. White (1871), L. R. fl C. P. 440,
and other cases cited post, p. 1412.