Odger's English Common Law

INJUBIA ET DAMNUM. 417
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, prirnd 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. Bat 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." * 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 im-
posing 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 Parlia-
ment, 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-G-eneral, a plaintiff suing without such consent
will be required to show that his private interests have been affected by
1 Sir Ed-ward Coke, 1 Inst. 56 a. ,„,,.„
* Seidey v Tlie Mayor of Lyme Regis (1834), 2 CI. & F. 331 ; and see Geddis v. Pro-
prietors of Bann Reservoir (1878), 3 App. Cas. 430, and the judgment of Bowen, L. J.,
in Rateliffe v. Emns, [1892] 2 Q. B. at pp 528,529.
s Borough of Bathurst v. Macpherton (1879), 1 App. Cas. 268.
B.C L.
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