Odger's English Common Law

FAILURE TO PERFORM A PUBLIC DUTY. 433
of their statutory duty in regard to the transfer of shares, and for wrongfully
declaring the same forfeited and selling them. For here "the
defendants have been guilty of a wrongful act of omission in not registering
the plaintiffs name in their books, and also of a wrongful act of commission
in declaring the shares to be forfeited, and in confirming that forfeiture.
It is said that the plaintiff could sustain no injury ; but he has been
deprived of the ordinary privileges of shareholders, and contingently of any
profits that might have arisen upon the shares. These are clearly injuries,
for which he has a right to bring an action." J
Further, a person who gives another dangerous goods to carry is bound
to give him notice of their dangerous character, and will be liable for
damages resulting from his omission to do so. 2
III.
Lastly, an action of tort may be founded on the breach or
neglect of some duty towards the public and consequent
damage to the plaintiff. Here three different matters have
to be proved in order to entitle the plaintiff to a verdict—the
existence of the alleged duty, its breach and consequent
damage to the plaintiff. The existence of a public duty
either at common law or under some statute must first be
established. 3
It may be a duty to do or a duty to refrain
from doing acts of a particular kind. An action will lie
by A. against B. whenever B. owes a duty to the public
and A. suffers some special injury because B. has omitted to
perform that duty, or has performed it negligently— or, in
more technical language, by reason of B.'s nonfeasance or
misfeasance.
Where the defendant has violated a private right of the
plaintiff, proof of actual damage is not, as we have seen,
necessary to entitle the plaintiff to recover. But where the
defendant has neglected to perform or has carelessly per-
formed a duty which he owes to the public generally, the
plaintiff cannot recover, unless he shows that he has sustained
some particular damage over and above whatever incon-
1 Par Lord Campbell, C. J., in Catch-pole v. The Ambergate, $c, By. Co. (1852;,
IE & B at p. 119 ; and see Skinner v. City of London Marine Insurance Corporation
(1885), 14 Q. B. D. 882.
2 Brass v. Maitland (1856), 6 E. & B. 470 ; Mitchell, Cotts $ Co. v. Steel Bros.,
[1916] 2 K. B. 610.
s As to the distinction between a public and a private duty, see Corby v. Hill
(1858) 4 C B N. S. 556 ; Indermaur v. Dames (1867), L. K. 2 C. P. 311 ;
Great Za^ey Mining Co. v. Clague (1878), 4 App. Cas. 115 ; Ching v. Surrey C.C.,
[1910] 1 K. B. 736 ; Morris v. Carnarvon C.C., lb. 840.
B.C.L.
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