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his injury, though no action be given in express terms by the statute for the omission or comission, the general rule of law is, that the party injured shall have an action. And, in like manner, when a person has an important public duty to perform, he is bound to perform that duty, and if he neglects or refuses so to do, and an individual in consequence sustains an injury, that lays the foundation for an action to recover damages by way of compensation for the injury that he has so sustained.2

There is, however, a class of cases, from which it is important to distinguish those above referred to, in which a damage is sustained by the plaintiff, but a damage not occasioned by anything which the law esteems an injury. This kind of damage is termed in law damnum absque injuriâ, and for it no action can be maintained.3 For instance, if a person build a house on the edge of his land, and the proprietor of the adjoining land, after twenty years have elapsed, digs so near it that it falls down, an action on the case will lie, because the plaintiff has by twenty years' use acquired a presumptive right to the support, and to infringe that right is an injury. But, if the owner of land adjoining a newly-built house dig in a similar manner, and produce similar results, in this case, though there is damage, yet, as there is no right to the support, no injury is, in legal contemplation, committed by withdrawing it, and consequently no action will be maintainable."

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*Further, it frequently happens, in the ordinary proceedings of life, that a man may lawfully use his own property so as to cause damage to his neighbour, provided it be not injuriosum ; or he may, whilst pursuing the reasonable exercise of an established right, casually cause an injury, which the law will regard as a misfortune merely, and for which the party from whose act it proceeds will be liable neither at law nor in the forum of conscience.

In cases of this nature a loss or damage is indeed sustained by the plaintiff, but it results from an act done by another free and respon

1 Ashby v. White, supra, cited argument, 9 Cl. & Fin. 274.

2 Per Lord Lyndhurst, C., 9 Cl. & Fin. 279, citing Sutton v. Johnstone, 1 T. R. 493; Bartlett v. Crozier, 15 Johns. R. (U. S.) 254, 255.

31 Smith, L. C. 131.

* Stansell v. Jollard, Stark., N. P. C. 444; E. C. L. R.; Hide v. Thornborough, 2 Car. & K. 250; E. C. L. R. 61.

5 Wyatt v. Harrison, 3 B. & Ad. 876; E. C. L. R. 23.

• The Eleanor, 2 Wheaton R. (U. S.) 358; Panton v. Holland, 17 Johns. R. (U. S.) 100.

sible being, which is neither unjust nor illegal. Thus, the establishment of a rival school, which draws away the scholars from a school previously established, is illustrative of such a loss. So, a man may lawfully build a wall on his own ground in such a manner as to obstruct the lights of his neighbour, who may not have acquired a right to them by grant or adverse user. He may build a mill near the mill of his neighbour, to the grievous damage of the latter by loss of custom. He may, by digging in his own land, intercept or drain off the water collected from underground springs in his neighbour's well. In these and similar cases, the inconvenience caused to his neighbour falls within the description of damnum absque injuriâ, which cannot become the ground of an action.2

In the above and similar cases, it is no doubt a hardship upon the party injured to be without a remedy, but by that consideration courts of justice ought not to be influenced. Hard cases, it has been already observed, are apt to introduce bad law.3

*Again, where process is served by mistake on a wrong [*152] person, and all the proceedings in the action are taken against him, the defendant so wrongfully sued will undoubtedly have a good defence to the action, and will consequently recover his costs; but if it be asked what further remedy he has for the inconvenience and trouble he has been put to, the answer is, that, in point of law, if the proceedings have been adopted purely through mistake, though injury may have resulted to him, it is damnum absque injuriâ, and no action will lie. Indeed, every defendant against whom an action is unnecessarily brought, experiences some injury or inconvenience beyond what the costs will compensate him for."

In the class of cases to which we have just been adverting, the party aggrieved has no remedy, because no right has, in contemplation of law, been invaded: Every injury, however, to a legal right necessarily imports a damage in the nature of it, though there be no pecuniary loss. Thus, where a prisoner is in execution on final pro

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1 Bell, Dict. and Dig. of Scotch Law, 252; Bac. Abr., "Actions in General” (B). 2 Acton v. Blundell, 12 M. & W. 341, 354; 3 Steph. Com. 465.

3 Ante, p. 111. Per Rolfe, B., Winterbottom v. Wright, 10 M. & W. 116. In Walker v. Hatton, 10 M. & W. 259, (*) Gurney, B., says, "The plaintiff may have been extremely ill-used, but I think he has no remedy."

4 Per Rolfe, B., Davies v. Jenkins, 11 M. & W. 755, 756; (*) Hobart, 266; Ewart v. Jones, 14 M. & W. 774; (*) Yearsley v. Heane, Id. 322; Daniels v. Fielding, 16 M. & W. 200; (*) De Medina v. Grove, 15 L. J., Q. B. 284. See also Fivaz v. Nicholls, 2 C. B. 501; E. C. L. R. 52.

5 Per Lord Holt, C. J., Ashby v. White, supra.

cess, the creditor has a right to the body of his debter every hour till the debt is paid; and an escape of the debtor, for ever so short a time, is necessarily a damage to him, and the action for an escape lies. So, if the sheriff, having a writ of execution delivered to him, unnecessarily delay putting it in force, an action on the case lies against him at the suit of the execution creditor, though no actual pecuniary damage has arisen from the default. In like

[*153] manner, if a banker has received sufficient funds from his

customer, he is bound to honour his check; and if he make default in doing so, he will be liable, although no actual damage has been sustained by the customer in consequence of such default.3

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The general principle laid down in the cases just cited seems to be quite in accordance with that set forth in the maxim now under consideration. We must, however, observe, that, in actions against the sheriff for breach of duty, a distinction has been taken between cases in which such breach occurred in the execution of final, and those in which it occurred in the execution of mesne, process. In Wylie v. Birch, indeed, which was an action on the case for a false return to a writ of fi. fa., pleas were sustained which showed that the plaintiff had, in fact, sustained no damage by the false return; and the Court of Queen's Bench there laid down without qualification, that an action on the case "cannot be maintained against the sheriff for breach of duty, unless damage accrues thereby to the plaintiff." It must, however, be remarked, that, in support of this position, they cited the case of Williams v. Mostyn, without adverting to the distinction between mesne and final process above mentioned, or to the fact that, in that case, the action was brought for a breach of duty in the execution of mesne process, and that the distinction alluded to was there expressly recognised. It is also worthy of remark, that, in the case of Clifton v. Hooper, *that of Wylie v. [*154] Birch, although apparently alluded to by Lord Denman, was not cited in the argument, nor mentioned in the judgment delivered by the Court.

1 Williams v. Mostyn, 4 M. & W. 153; (*) recognised in Wylie v. Birch, 4 Q. B. 566, 577; E. C. L. R. 45; and Clifton v. Hooper, 6 Q. B. 468; E. C. L. R. 51. 2 Clifton v. Hooper, 6 Q. B. 468; E. C. L. R. 51.

3 Marzetti v. Williams, 1 B. & Ad. 415; E. C. L. R. 20; recognised 6 Q. B. 475; E. C. L. R. 51; Warwick v. Rogers, 6 Scott, N. R. 1.

4 Williams v. Mostyn, 4 M. & W. 153; (*) Clifton v. Hooper, 6 Q. B. 474; E. C. L. R. 51. But see Atk. Sher. L. 2d ed. 524.

64 Q. B. 566; E. C. L. R. 45. 4 Q. B. 577; E. C. L. R. 45.

See also Bales v. Wingfield, Id. 580, (a).

From the preceding examples it will be inferred, that an injury to a right may consist either in a misfeasance or a non-feasance; and it may not be improper here to remark, that there is in fact a large class of cases, in which the foundation of the action lies in a privity of contract between the parties, but in which, nevertheless, the remedy for the breach or non-performance is indifferently either assumpsit or case. Such are actions against attorneys, surgeons, and other professional men, for want of competent skill or proper care in the service they undertake to render. Actions against common carriers, against ship-owners on bills of lading, against bailees of different descriptions, and numerous other instances, occur, in which the action is brought in tort or contract, at the election of the plaintiff. Nor is it true that this election is only given where the plaintiff sues for a misfeasance and not for a non-feasance, for the action of case upon tort very frequently occurs, where there is a simple non-performance of the particular contract, as in the ordinary instance of case against ship-owners for not safely and securely delivering goods according to the bill of lading; and, in a recent case, it was decided, that the plaintiff was entitled to nominal damages, without proof of any actual damage; the principle in all such cases being, that the contract creates a duty, and the neglect to perform that duty, or the non-feasance, is a ground of action upon tort.1

*Having stated it as generally true, that, when a right has [*155] been invaded, an action for damages will lie, although no damage has been actually sustained, we may observe, that the principle on which many such cases proceed, is, that it is material to the establishment and preservation of the right itself, that its invasion should not pass with impunity; and in these cases, therefore, nominal damages only are usually awarded, because the recovery of such damages sufficiently vindicates the plaintiff's right:2 as, for instance, in tresspass qua. cl. fr., which is maintainable for an entry on the land of another, though there be no real damage, because repeated acts of going over the land might be used as evidence of a title to do so, and thereby the right of the plaintiff might be injured; or in

I Judgment, Boorman v. Brown (Exchequer Chamber), 3 Q. B. 525, 526; E. C. L. R. 43; S. C., affirmed 11 Cl. & Fin. 1; per Lord Abinger, C. B., Winterbottom v. Wright, 10 M. & W. 115; (*) Marzetti v. Williams, 1 B. & Ad. 415, 426; E. C. L. R. 20.

23 Steph. Com. 463, 464. See Blofield v. Paine, 4 B. & Ad. 410; E. C. L. R. 24; Wells v. Watling, 2 W. Bla. 1233; Pindar v. Wadsworth, 2 East, 154.

an action by a commoner for an injury done to his common, in which action evidence need not be given of the exercise of the right of common by the plaintiff.1

It is not, indeed, by any means true, that the actual injury is, in every case, the proper measure of damages to be given; for instance, my neighbour may take from under my house coal, which I may have no means of getting at, and yet I may recover the value, notwithstanding I have sustained no real injury.2

The maxim, however, ubi jus ibi remedium, though generally, is not universally true, and a great variety of cases occur to which it does not apply, or at least in which the remedy cannot be in the shape of a civil action to recover *damages for the injury [*156] sustained. Some of these are cases in which the act done is a grievance to the entire community, no one of whom is injured by it more than another. In such cases, the mode of punishing the wrongdoer is by indictment only; although, if any person has suffered a particular damage, beyond that suffered by the public, he may maintain an action in respect thereof; thus, if A. dig a trench across the highway, this is the subject of an indictment; but if B. fall into it and sustain a damage, then the particular damage thus sustained will support an action.*

Where, for instance, the Crown, by letters-patent, granted to a corporation the borough or town of L., together with the pier or quay belonging thereto, and it appeared from the whole instrument that the things granted were, in fact, the consideration for repairing certain buildings and erections, the Court held, that the corporation, by accepting the letters-patent, bound themselves to do the repairs; and that, this obligation being one which concerned the public, an indictment would lie, in case of non-repair, against the mayor and burgesses for their general default, and an action on the case for a direct and particular damage sustained in consequence by an indi

1 Per Taunton, J., 1 B. & Ad. 426; E. C. L. R. 20; Wells v. Watling, W. Bla. 1233; 1 Wms. Saunds. 346 a, note.

2 See per Maule, J., Clow v. Brogden, 2 Scott, N. R. 315, 316; per Lord Denman, C. J., Taylor v. Henniker, 12 Ad. & E. 488, 492; E. C. L. R. 40; Pontifex v. Bignold, 3 Scott, N. R. 390. 3 Co. Litt. 56, a.

4 Per Holt, C. J., 2 Ld. Raym. 955; Wilkes v. Hungerford Market Company, 2 Bing., N. C. 293; E. C. L. R. 29; see Hart v. Bassett, T. Jones, 156; Chichester v. Lethbridge, Willes, 73; Rose v. Miles, 4 M. & S. 101, and cases cited, Rose v. Groves, 6 Scott, N. R. 645; Dobson v. Blackmore, 16 L. J., Q. B. 233.

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