Stanfield v. Phillips

Mr. Justice Gordon delivered the opinion of the court, March 15th 1875. The declaration, in this ease, was general, and therefore only such general damages as the law would presume to flow from the illegal arrest complained .of could be recovered under it: 1 Chitty’s Pl. 395. If the plaintiff desired to recover special damages he should have set forth the cause which produced them with particularity, in order that the defendants might know with certainty what they had to meet. This rule imposes no hardship upon the plaintiff, and the enforcement of it is but a matter of justice to defendant. The above stated rule, of course, governs the evidence which should be admitted in such cases. Evidence of special damage may only be given where the way has been prepared for it by proper averments in the narr. It is evident, therefore, that the learned judge, who tried this cause at Nisi Prius fell into error in admitting the testimony which followed the plaintiff’s offer to show, “ in what manner the plaintiff was injured in credit and circumstances, and to what extent ?” The offer itself indicates its special character, and the defendants object to it on that ground. If, however, there was any doubt on that subject, it was fully and completely dissipated by what followed. Proof was made by Fleming S. Phillips, on the part of the plaintiff, that the consummation of an arrangement, which they, that is, the copartnership composed of the witness and the [77] plaintiff, under the name of J. It. & F. S. Phillips, had with their creditors for an extension of time on their claims, failed by reason of the illegal action of the defendants in the prosecution and arrest of the plaintiff; that they were thereby obliged to pay out all their moneys upon their debts, and were thus deprived of means with which to carry on business ; that this action on the part of the defendants, caused the plaintiff’s illness, and prevented their creditors from acceding to their propositions; that it embarrassed them in the conduct of their business, and led to their suspension. Now, if it be the law, as stated by Chitty, in his work on Pleading, vol. 1, pp. 396-7, that the plaintiff, in an action for false imprisonment, may not, unless the fact be specially stated in his narr., give evidence that his health was injured thereby, how can the testimony as above set forth be admissible under the pleadings in this case ? We see, from the a|)ove stated rule, that proof of the only direct personal effect stated in the testimony, i. e., the plaintiff’s illness, was inadmissible, much more the remoter consequences which resulted to him through the embarrassments of his firm. These are not consequences which the law presumes to arise from an arrest, and hence they should have been excluded from the case. But, it is argued, that the offer was general, and if improper evidence was received under it, it was the duty of the defendants to call the attention of the court thereto, and have it excluded. But we are not willing to admit, as we have before intimated, that his offer was general. Its terms indicated what followed. The proposition was to prove in what manner, that is, how, in what way, or by what means, the plaintiff was injured in his credit and circumstances. But the law presumes that the manner or way in which the plaintiff was injured, was by the malicious arrest and prosecution, and of these the necessary proofs were already before the court. Then clearly, the plaintiff, by his offer intended either to go farther than this, by introducing some special matter, or to re-introduce evidence which had just been received, and about which there had been no dispute. As the latter presumption is absurd, nothing remains but the former. Thus the special character of the offer was demonstrated by the very circumstances under which it was made, and it should therefore have been excluded from the case. We discover no other error in the record or rulings which needs correction, except that the letter dated October 7th 1870, J. R. & F. S. Phillips to E. O. Tufts & Co., offered by the defendants, as tending to contradict the testimony of the plaintiff and his brother, should have been admitted. The judgment is reversed, and a venire facias de novo awarded. Williams and Mercur, JJ., dissented.