Page:Harvard Law Review Volume 2.djvu/44

 26 HARVARD LAW REVIEW.

Lord Kenyon held that an action on the case would lie for dis- charging cannon-balls at negroes on the coast of Africa, whereby they were frightened and prevented from coming to the plaintiff's vessel to trade. In New York it has been held actionable in two instances^ to cause the breach of a contract of sale, which was within the Statute of Frauds, and as to which the statute had not been satisfied, although both parties intended to perform. The means used by the defendant in each case were false representa- tions, — in one case that the plaintiff did not want the goods which were the subject of the contract, and in the other that he did not intend to supply them, whereby the defendant procured the advan- tage of a contract with himself. In New Jersey, in the case of Hughes V, McDonough,^ an action on the case was sustained, in which the defendant loosened a horseshoe put on by the plaintiff, for the purpose of causing the owner of the horse to believe that the plaintiff, who was a blacksmith, was an unskilful workman, whereby he lost the owner's trade. So a trader, in an action in his own right for defamatory words spoken of his wife, who assisted him in his business, was successful upon showing a falling off of custom at his store. Riding v. Smith, Ex. D. 91.

The above cases differ from Lumley v, Gye in the fact that the damage sustained was not the breach of a contract, nor indeed the loss of any property, but merely the failure to make a profit or gain ; but that is sufficient to constitute damage.^ As to the other important element in the action on the case, viz., the wrong- ful act, the injuria^ in each of the above instances, whether it con- sisted of violence, as in Tarleton v, Magawley, or of fraud, as in Rice 7;. Manley, it was wrongful as against the plaintiff, only be- cause it was done without justifiable cause, for the purpose of causing the damage, or with knowledge that the damage would result. But such an act, as the word is used in Lumley v, Gye, and as it is used in the law of libel, is malicious, and wrongful only because it is malicious, or done without justifiable cause. It

1 Benton v. Pratt, 2 Wend 385 ; Rice v, Manley, 66 N. Y. 82. See Green v. But- ton, 2 C, M. & R. 707.

2 43 N. J. (Law) 459. See, also, Rogers v. Rajendro Dutt, 13 Moore P. C. 209, at 240. s This principle existed in the Roman law. The failure to make a profit (lucrum

cessans), as well as a positive loss or injury to property (damnum emergens), was taken into account in assessing damages for a tort under the lex Aquilia. ** Inde Neratius scrilnt, si servus institutus occisus sit, etiam hereditatis aestimationem venire." D. 9, 2, 23, pr. (Ulpian). See Grueber, Lex Aquilia, 62, 268.