Butler v. Kent

19 Johns. 223 | N.Y. Sup. Ct. | 1821

Spences, Ch. J.,

delivered the opinion of the Courtl Although the declaration states many particulars of mismanagement, either by the defendants, or their agent, it nowhere charges them with fraud. The amount of the gravamen is, that they were negligent in conducting the preparation for and the drawing of the lottery, that the plaintiff had bought tickets in the lottery,.for the purpose of selling, and that, in consequence of the negligent manner in which the drawing and managing the lottery was conducted, public confidence in the integrity and fairness of the drawing of the lottery was lost, the demand for tick-ets and the price of the tickets were diminished, so that the plaintiff was unable to sell his tickets ; and they remained unsold, and were drawn blanks. The declaration, it is true, states, that the defendants conducted the drawing of the lottery in such a careless, negligent, unfaithful, and fraudulent manner, that whole handfuls of tickets were permitted to be taken out of the number wheels at a time, &c.; this does not amount to a charge of direct and personal fraud, but merely to carelessness and negligence ; and it is averred that this carelessness and negligence led only to calling the numbers out of their order, and not as they were drawn from the wheel. The present action is founded on the misbehaviour of the defendants in a public trust, whereby a private injury to the plaintiff is supposed to have been committed. It is an action of the first impression, and must be governed by known and established principles.

I consider the point beyond all dispute, that for a misbehaviour of an officer, in his office, either from misfeasance or nonfeasance, no one can maintain an action against him, unless he can show a special and particular damage to himself. Without such special and particular damage, he has no title to call the officer to an account. Lord Coke (Co. Litt. 56. a.) says, in a case which bears strong analogy to this, “ that if a way be a common way, if any man be disturbed to go that way, or if a ditch be made overthwart the way, so as he cannot go, yet shall he not have an action upon his case ; and this the law provided, for avoiding of multiplicity of suits, for if any "one man might have an action, all men might have the like.” He proceeds to say, that if he had his horse fall into the ditch, whereby he received hurt and loss, thefe, for his special damage, which is not common to others, he shall have an action upon his case. This principle was solemnly recognized, and acted upon in Pain v. Patrick and others, (3 Mod. Rep. 289.) The same case is reported in 1 Salk. 12. as Payne v. Patridge and others. In Ivason v. Moore, (1 Salk. 16. 1 Ld. Raym. 486.) which was an action on the case for stopping up a highway leading to the plaintiff’s colliery, with intent to deprive him of the profit thereof, per quod, he lost the profit, 8zc. and his coals were spoiled for want of buyers, Chief Justice Holt and Rokesby, (contra Tourton and Gould,) were of opinion, that no action lay, the way appearing to be a public highway. They held that the plaintiff had no better right than any body else, and that a man could not have a particular action without a particular injury, or a particular right, which, they said, were the grounds upon which all actions are founded, and to which they must conform. The same principles were adopted in Williams's case. (5 Co. Rep. 73.) Baron Comyns cites the cases in Salkeld, as law. (1 Com. Dig. 180. Action upon the case, B. 2.) The same principle was adopted by Lord Kenyon in Herbert v. Groves, (1 Esp. Rep. 148.) which was afterwards confirmed by the Court. The analogy between the cases cited, and the present, consists in this, that the defendants have undertaken a duty which is common, in regard to all those Who purchase tickets in that lottery; that they owe no peculiar duty, and are under no particular obligation to the plaintiff, as to their conduct, other than such as is common to all the purchasers and holders of tickets in that lottery. The defendants, then, stand in the same relation to the plaintiff, as they do to a great number of other persons. So, in the case of a public road, all who choose to travel it, have an equal right; digging a ditch across the road is an injury alike to all, but no one can maintain an action, unless he can show a particular injury, an injury peculiar to himself; not merely that he could not pass the road, but that some special damage happened to him.

The particular injury stated by the plaintiff is, that by the defendants’ conduct and negligence, in the instances pointed out, the public confidence in the integrity and fairness of the drawing of the lottery was wholly lost, and the demand for tickets by purchasers, and the price of the tickets, were greatly diminished, so that the plaintiff could not sell his tickets by retail, and the same were drawn as blanks.

I perceive, in these allegations, no charge of any particular injury to the plaintiff; nor do I perceive any particular right of the plaintiff which has been violated. The injury? if any, is common to all those who held tickets in that particular lottery : and we see that in such a case it appertains to the public only to avenge the injury. If there has been any unfaithfulness or dishonesty on the part of the managers of this lottery, they are responsible, under the bonds which the statute (1 R. L. 270.) requires them to give; and possibly, also, by indictment.

There is another view of the subject, which, I apprehend, equally concludes against the plaintiff: In cases of torts, if is necessary to show that the particular damage, in respect of which the plaintiff proceeds, must be the legal-and natural consequence of the wrongful acts imputed to the defendant. (1 Chitty’s Pl. 388. 8 East’s. Rep. 3.) It is another rule, that the special damage must be particularized, in order that the defendant may be able to. meet the charge, if il be false; if it be not so stated, it cannot be given in evidence, And if "the action be not sustainable, independent of the special damage, the declaration is bad on demurrer. (1 Chitty’s Pl. 389. 1 Saund. 243. n. 5. 8 Term Rep. 132.) A de claration by a victualler, for calling his wife a whore, whereby several customers left his house, is too general. So, in a de claration for slander of title to an estate, whereby the plaintif lost the sale of it, is insufficient. (1 Chitty’s Pl. 389.) The same doctrine is held in Mason v. Moore, (1 Salk. 16.) The only allegation of special damage is, that in consequence o ie loss of public confidence in the integrity and fairness of the r . ... rawing of the lottery, the plaintiff could not sell his tickets by itail. In the case last cited, Lord Holt was of opinion, that it as not enough to say that the plaintiff lost customers, or that uyers would not come, without showing that buyers were comig and were hindered. It is impossible to conceive any thing tore vague and untriable, than the loss of a market for any ommodity, from the want of public confidence.

The cases cited by the plaintiff’s counsel are inapplicable. The case of Ashby v. White, (2 Ld Raym. 938.) came under ie consideration of this Court in Jenkins v. Waldron, (11 Johns. Rep. 120.) and we held that to enable a voter whose vote was ¡fused, to maintain an action, the refusal to admit the vote lust appear to be fraudulent and malicious ; but there is no lalogy between the cases. The injury, if any, is peculiar to le party whose vote is rejected •, the right to vote is enjoyed T many; but the injury is not of a common nature. Tbe case f a postmaster, through whose negligence a letter, or any ting transmitted by the post, is lost, is different, and is dislinlishable from this case ; for the injury is a particular one to te party who suffers tbe loss.

Upon the whole, we are clearly of opinion, that tbe present ;tion is not maintainable, and that the defendants must have idgment. Judgment for the defendants.