CLAIM. 1. The plaintiff together with his brother was a candidate for membership of the Reform Club. The defendant was a member of the said club.

2. Upon a ballot of the members of the said club the plaintiff and his brother were not elected to membership.

3. Subsequently to the said ballot, a meeting of the members of the club was called to consider a proposed alteration of the rules regulating the election of members, and the defendant took an active and personal interest in the matter.

4. With a view to retain the regulations as they then existed, and to secure the exclusion of the plaintiff from membership of the said club, the defendant falsely and maliciously spoke and published of the plaintiff, together with his said brother, the words following, that is to say: "The conduct of the Messrs. Chamberlain" (meaning the plaintiff and his said brother), "was so bad at a club in Melbourne, that a round robin was signed urging the committee to expel them. As however they were there only for a short time, the committee did not proceed further": (meaning thereby that the plaintiff had been guilty of conduct, which justified his expulsion from a club in Melbourne, and which unfitted him from membership of the Reform or any other similar club). . . .

7. By reason of the said defamatory statements the defendant induced or contributed to inducing a majority of the members of the club to retain the regulations under which the plaintiff had been rejected, and thereby prevented the plaintiff from again seeking to be elected to the said club. The plaintiff thus lost the advantage which he would have derived from again becoming a candidate with the chance of being elected. And the plaintiff suffered in his reputation and credit. The defendant demurred. Field, J., overruled the demurrer. The defendant appealed.

March 16, 19. C. Russell, Q. C. (Houghton with him, for the defendant. It may be conceded by the defendant that if the plaintiff had been rejected at an election for the Reform Club owing to the words complained of, an action would lie; but the claim in its present shape is bad on three grounds: first, there is no sufficient allegation of special damage; secondly, the special damage alleged is unconnected with the slander; thirdly, the special damage is too remote. ...

Sir H. James, A. G., and Crump, for the plaintiff. . . . It may be that the words complained of in the present action would be insufficient to support an action without special damage; but any temporal disadvantage is sufficient; it need not be a pecuniary loss. . . . The loss

of hospitality and the exclusion from the society of friends were sufficient to give cause of action. If the defamatory words lessened the plaintiff's chance of being elected, they are actionable; and the liability is the same, if they prevented the steps necessary to secure the plaintiff's election from being taken. .

Lord COLERIDGE, C. J. Several points have been raised during the argument before us, some of them merely verbal, but two are points of substance.

First, no damage is alleged in respect of which the law allows an action to be brought. To take the question most favourably for the plaintiff, the statement of claim merely alleges that the defendant falsely and maliciously, that is, with an intention hostile to the plaintiff, spoke and published words whereby a change in the mode of the election of candidates at the Reform Club was prevented, and the members of that club were induced to retain a mode of election which gave less chance of success to the plaintiff if his name should be put up at the club again. I am clearly of opinion that it would be dangerous to hold that these averments give a ground of action: the damage alleged is unsubstantial and shadowy, and is in truth incapable of being estimated in money; and where words spoken, as in the present case, are not actionable in themselves, they can become actionable only when they have been followed by pecuniary or temporal damage. The case is ́new and is unsupported by the authority of any previous decision, and the argument for the plaintiff is entirely opposed to the principles upon which actions of slander have been determined. I am not inclined to extend the limits within which the law allows actions for defamation to be brought. Upon this ground alone, I think that the demurrer ought to be upheld. .

BOWEN, L. J. I am of the same opinion. I decide the case not upon any ingenious criticism of the words used; at this stage of our legal history we ought not to weigh too nicely the language of pleaders. . . I am of opinion that there is no legal damage such as is necessary to sustain the action. In law, words spoken are different from words written, and special damage is necessary to support an action for slander not imputing crime, misconduct in a profession or a trade, or some kinds of disease; and in the present case no loss of any temporal advantage is alleged. I do not say that if the defendant by speaking the words complained of had actually prevented the election of the plaintiff, the latter might not have had a cause of action. Possibly the membership of a club may be a matter of temporal advantage, and the deprivation of it may be an injury or damage of which the law will take cognizance. But it is not alleged that the defendant's words prevented the election of the plaintiff, and that is the fatal blot in the plaintiff's case. . . . It might have been different if it had been stated that by reason of the defendant's words the plaintiff had been deprived either of the opportunity of standing again or of all chance of being elected. But

that is not alleged in the claim: all that is stated is that the plaintiff was prevented from again seeking to be elected, that is, that the determination of the club to retain the regulations under which the plaintiff had been rejected, made him think it not worth his while to stand again for election. The defendant's words did not deprive the plaintiff of all chance of being elected; they only deprived him of "a" chance. And “a” chance is a word expressive only of the measure of the uncertainty of a man's own mind. Putting the case in the strongest manner for the plaintiff, it only comes to this that the refusal to alter the regulations kept him in a position in which an election might or might not result in his being chosen a member. But that appears to me to leave the damage too remote, and to place it beyond the line which the law has wisely drawn. The risk of temporal loss is not the same as temporal loss: the risk of suffering injury is not the same as to suffer injury. If it were otherwise, the limitation which the law imposes on liability to actions for words spoken would be entirely done away with, because the party defamed could always urge that he had lost the chance of an advantage or had run the risk of an injury. But the "chance"

of an advantage is not the same as the advantage, and the risk of an injury is not the same as the injury. The law had said that in order to support an action for words spoken not imputing crime, misconduct in a trade or profession, or disease, there must be a loss of some temporal benefit, and the plaintiff has failed to shew any.

I also think that the damage alleged is far too remote, and also that it is not the natural and probable consequence of the words spoken. As to this part of the case I have nothing to add to what has fallen from LORD COLERIDGE, C. J., and BRETT, L. J., and I concur in their judgments. Judgment for the defendant.

139. HUTCHINS v. HUTCHINS

SUPREME COURT OF NEW YORK. 1845

7 Hill 104

ON demurrer to the declaration. The first count was in these words: "For that whereas the said defendants (Benjamin B. Hutchins, Daniel Strang and Sarah his wife, James W. Wilde and Caroline his wife), heretofore, to wit, on the first day of January, 1842, and at sundry times previous thereto, at Fishkill, to wit, at the town of Poughkeepsie in the county of Dutchess, did fraudulently combine, confederate and conspire with each other maliciously and for the purpose of enhancing their own interest in the estate of Benjamin Hutchins, the father of the said plaintiff, now deceased (then residing at Fishkill in said county, and being a person of advanced age, and weak and feeble in body and mind, and incapable of transacting business), and for the purpose of injuring and defrauding the said plaintiff of his rights which otherwise would have accrued to him as devisee of the said Benjamin Hutchins, under his will

duly made and executed, bearing date the 10th day of November, 1828, at which time said Benjamin Hutchins was in the full enjoyment and possession of his mental faculties, as was well known to the said defendants, and to induce and prevail upon the said Benjamin Hutchins to revoke his said will, and make and execute another will, whereby the said plaintiff would be wholly deprived of the benefits and rights that would otherwise have accrued to him under said first mentioned will: and the said defendants then and there did, by so fraudulently, maliciously and wrongfully combining, confederating and conspiring together, and by means of fraud, deceit, falsehood and misrepresentation, and by falsely representing to the said Benjamin Hutchins, in conversation, that the said plaintiff was getting all his, said Benjamin's, money away, and spending it on his, the said plaintiff's sons, that the said plaintiff was embezzling his, the said Benjamin's, money, and putting it out with his own &c., and that the said plaintiff was mortgaging his, the said Benjamin's, land, and would ruin him, the said Benjamin, so that he would have to go to the county house,' all of which representations were unfounded, untrue, and malicious, did prevail upon and induce the said Benjamin Hutchins to make and execute another will prepared by them, the said defendants, for that purpose, thereby revoking said first mentioned will; and the said Benjamin Hutchins did, after so making and executing the said last mentioned will, depart this life; and the said last mentioned will was, after the said Benjamin's decease, and before the commencement of this suit, duly proved before the surrogate of the county of Dutchess: whereby the said plaintiff was wholly deprized of the interest, benefits and rights that otherwise would have accrued to him under the first mentioned will, had the same remained valid and unrevoked," &c.

The second count was like the first, except in the following particulars: it recited a clause of the first will by which the said Benjamin Hutchins devised a farm to the plaintiff, known as the Ackerman farm, consisting of 151 acres; and charged the defendants with having falsely represented to the said Benjamin, by letters which they caused to be written and sent, that the plaintiff pretended to have a large account against him, sufficient to absorb the whole of his estate, which was to be presented after his decease, for the purpose of depriving the other children of their just shares, &c.: by means whereof

"the said defendants did thereby prevail upon and induce the said Benjamin to execute a will prepared by the said defendants, a part whereof relating to the plaintiff is in substance as follows, to wit: 'And whereas it hath been represented to me that my son William has an extravagant account against my estate, it is my will that if he brings any more accounts against my estate than the rent of the farm he lives on, then that he have no part of my estate, and that such part that might come to him be finally divided among the rest of my children and their heirs'; by which said last mentioned will the said above mentioned devise of the said Ackerman farm was wholly omitted, and the said first mentioned will was revoked," &c.

The third count alleged that the defendants induced the said Benjamin to revoke his first will, &c., by falsely representing to him that the plaintiff was a thief, a liar, a person not to be trusted, etc. In other respects the count was substantially like the first.

The defendant Benjamin B. Hutchins demurred to the declaration, and the plaintiff joined in demurrer. . .

By the Court, NELSON, Ch. J. The allegation of a conspiracy between the defendants for the purpose and with the intent of committing wrong complained of in the several counts of the declaration, is of no importance so far as respects the cause and ground of the action. . .

We may therefore lay out of consideration altogether the conspiracy charged against these defendants, in endeavoring to ascertain if any foundation is laid for the action; and regard it the same as if the defendant Hutchins had alone committed the several grievances for which redress is sought. . . . [After stating the case briefly,]

This is the substance of the case, in its strongest aspect, as presented by the pleadings; and the question arises whether any actual damage, in contemplation of law, is shown to have been sustained by the plaintiff ? Fraud without damage, or damage without fraud, gives no cause of action; but where both concur, an action lies. Damage, in the sense of the law, may arise out of injuries to the person or to the property of the party.... As to the latter, the party aggrieved must not only establish that the alleged tort or trespass has been committed, but must aver and prove his right or interest in the property or thing affected, before he can be deemed to have sustained damages for which an action will lie. Now, testing the plaintiff's declaration by these principles, has he made out a case from which it can be said that damage has resulted to him? I think not. In respect to the farm devised to him by the first will, he fails to show that he had any such interest in it as the law will recognize. The only foundation of his claim rests upon the mere unexecuted intention of his father to make a gift of the property; and this cannot be said to have conferred a right of any kind. To hold otherwise, and sanction the doctrine contended for by the plaintiff, would be next to saying that every voluntary courtesy was matter of legal obligation; that private thoughts and intentions, concerning benevolent or charitable distributions of property, might be seized upon as the foundation of a right which the law would deal with and protect.

I have not overlooked the cases referred to on the argument, of actions of slander, where special damage must be shown in order to make the words actionable. . . . If this description of special damage is to be regarded as the gist and foundation of the action, I rather think the principle should be regarded as peculiar to that species of injury. I am not aware of any class of remedies given for a violation of the rights of property, where so remote and contingent a damage has been allowed as a substantial ground of action. But the law applicable to the cases referred to proceeds upon the ground that the plaintiff, by the wrongful act complained of, has been deprived of the present, actual enjoyment of some pecuniary advantage. No such damage can be pretended here. At best, the contemplated gift was not to be realized till after the death of the testator, which might not happen until after the death of the plaintiff; or the testator might change his mind, or lose his property.