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CHAPTER III.

GENERAL RULES APPLICABLE TO ALL ACTIONS.

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RULE 2. RULE 2.—No action can be brought except for
No action the infringement of a right.
where no
infringe-
ment of As the ground of an action is always an interference
right.

with some right of the person aggrieved, every plaintiff
must, in order to support his case, prove that his rights
have been interfered with, by showing that the defendant
has by his acts or omissions either broken a contract
made with the plaintiff, i. e. violated a right which the
plaintiff had acquired by agreement with the defendant, or
interfered with some right of the plaintiff, existing inde-

pendently of any contract. Mere

No man can support an action simply on the ground damage will not

that he suffers damage from another's conduct. It consupport an stantly happens that acts which are popularly called

injurious, because they occasion damage to a particular
person, do not enable that person to sue, because they do
not amount to an interference with his rights, and do not,
therefore, constitute what in the legal sense of the term
is an “injury” (a). On the other hand, when a man can
sue because he suffers a damage, the cause of action is
not, strictly speaking, the damage, but the interference
with his right. This is expressed in technical language

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(a) The word “injury" has at least three senses. It means in common parlance any damage done by one person to another. It means in legal language either any interference with, or infringement upon, a right of any description whatever, or, secondly, an interference with a particular class of rights which exist independently of a contract. In its last sense the word is synonymous with a wrong or a tort.

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by the maxim, that “ damage without injury is never a

, cause of action."

The rule itself is perfectly clear, and needs to be borne in mind, not only in determining whether a given person has any right of action, but also, frequently, in ascertaining by which of two persons a wrongdoer ought to be sued ; since it often happens, that a wrongful act, which

; causes substantial damage to A., infringes upon the rights, not of A., but of B., who perhaps may be little damaged. 1 Under such circumstances an action in the name of A. will fail, whilst an action in the name of B. will succeed (b).

It is often difficult to decide whether a person who has been damaged has or has not suffered an injury. The nature and application of the rule are best seen from examples.

Many kinds of damage are clearly not injurious.

If a school be set up in the same town where an ancient school has been time out of mind, by which the old school receives damage, yet no action lies. So, if I retain a master in my house to instruct my children, though it may be to the damage of the common master, yet no action lies.

If I throw out windows in my house, which overlook my neighbour's house, and break in upon that privacy which he before enjoyed, no action lies” (c). So, no one can sue for mere damage to the prospect or view from his dwelling (d), or for an interference with the current of air to his mill (e). Nor has anyone an absolute right to support from a house adjoining to his own (f); though the question what right, if any, the

(6) See, e.g., Hill v. Tupper, 2 H. & C. 121, 32 L. J. 217, Ex., noticed p. 37, post. See Chapter XIX. for cases where an action of trespass should be brought in the name of a tenant, though really on behalf of a landlord.

(c) Bacon, Abr., Actions, B.
(d) Aldred's case, 9 Coke, 58 b.

(e) Webb v. Bird, 10 C, B., N. S., 268 ; 30 L. J. 284, C. P. ; 10 C. B., N. S., 841; 31 L. J. 245, C. P. (Ex. Ch.)

(J) Solomon v. Vintners' Co., 4 H. & N. 585 ; 28 L. J. 370, Ex,

owner of a house has to support from the adjoining houses is not completely settled.

It is again a damage for any one to be made defendant in an action without reason. et, if X., mistaking A. for B., serves a writ upon him, and follows up the action against him, A., though he has a good defence, and can recover costs, has no remedy against X. for the inconvenience to which he has been put, provided the proceedings have been adopted purely through mistake ; for though damage may have resulted to him, it is damnum absque injuria, and no action lies. Indeed every defendant against whom an action is unnecessarily brought, experiences some damage or inconvenience beyond what costs compensate him for, and yet has no remedy (g).

It cannot, however, be absolutely laid down that a person may never sue another for having brought an action against him. “ That an action may be brought under such circumstances as to render it morally wrong and injurious in fact is certain, though the authorities leave it in doubt, whether under any circumstances the person so sued recover damages for the vexation and annoyance caused to him by the false suit" (h), i, e., whether he can treat it as an injury. Defamatory statements are

are in general actionable when they cause damage, and are frequently so when they do not cause any damage. Yet, even when most damaging, they are under many circumstances not to be esteemed injuries.

Thus, no true assertion, however damaging or defamatory in its character, can, whether made in writing or by word of mouth, give a cause of action (i) to the per

can

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(9) See Daries V. Jenkins, 11 M, & W. 756, judgment of Rolfe, B.

(h) Wren v. Weild, L. R. 4 Q. B. 730, 735, judginent of Blackburn, J. The authorities are reviewed in this judgment.

(i) It may, however, under some circumstances be the subject of an indictment.

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son damaged ; since the publisher of the libel, or the utterer of the slander, can always defend himself in an action at law, by proving the truth of the assertion complained of.

Nor are defamatory statements, even when untrue, always actionable, though causing damage to the person of whom they are written or spoken. For such statements are often privileged, i. e., made under circumstances such as to exempt the person making them i from liability to be sued. They may be privileged

various grounds, as for instance, that they are made bona fide in the assertion of a right, or the performance of a duty (k); that they are fair criticisms on matters of public interest (1); that they are words pertinent to the matter in issue, spoken by an attorney or advocate in the course of a judicial proceeding (m), or by a witness in giving his evidence, or a fair report of proceedings in a trial, or of

, a debate in parliament (o). The point to be here noticed is, that privileged statements, whenever they cause damage, afford an example of damage without injury (p).

In the foregoing instances the person damaged has clearly not been injured, i.e., has not suffered an interference with his rights. The following examples illustrate the difficulty which may arise in determining whether a person damaged has or has not been injured. A., the plaintiff, was the lessee of mines, the defendants X. and Y. were the owners of a mill standing on land adjoining that under which the mines were worked.

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(k) Whiteley v. Adams, 15 C. B., N. S., 392; 33 L. J. 89, C. P. ; Cowles v. Potts, 34 L. J. 247, Q. B.

(1) Campbell v. Spottisvoode, 32 L. J. 185, Q. B.; 3 B. & S. 769.

(m) Mackay v. Ford, 5 H. & N. 792 ; 29 L. J. 404, Ex. ; Revis v. Smith, 18 C. B. 129 ; 25 L. J. 195, C. B. ; Henderson v. Broomhead, 4 H. & N. 569; 28 L. J. 360, Ex.

(0) Wason v. ulter, L. R. 4 Q. B. 73; 38 L. J. 34, Q. B.

(p) See notes to Ashby v. While, 1 Smith, L. C., 6th ed., 258, 259 ; Dawkins v. Lord Paget, L. R. 5 Q. B. 94.

Defendants employed competent persons to construct a reservoir. A. had worked his mines to a spot where there were certain passages of disused mines, which communicated with shafts which led to the land above, and which were apparently filled up with earth. No care was taken by the contractor or the engineer to fill up these shafts. The water introduced into X. and Y.'s reservoir broke through the shafts and flooded A.'s mine.

There could in this case be no doubt that A. had been damaged. The question for consideration was in substance whether A. had suffered an injury from X. and Y., for though the form which the question took was what was the strict duty of X. and Y. towards A., this inquiry is in substance exactly the same as the question what was the right of A. against them. The question at issue is thus stated by the Court :

“The plaintiff, though free from all blame on his part, must bear the loss, unless he can establish that it was the consequence of some default for which the defendants are responsible. The question of law, therefore, arises, what is the obligation which the law casts on a person who, like the defendants, lawfully brings on his land something, which, though harmless whilst it remains there, will naturally do mischief if it escape out of his land. It is agreed on all hands, that he must take care to keep in that which he has brought on the land and keeps there, in order that it may not escape and damage his neighbours. But the question arises whether the duty which the law casts upon him under such circumstances is an absolute duty to keep it at his peril, or is .... merely a duty to take all reasonable and prudent precautions in order to keep it in, but no more. If the first be the law, the person who has brought on his land and kept there something dangerous, and failed to keep it in, is responsible for all the natural consequences of its escape. If the second be the limit of his duty, he would not be answerable except on proof of negligence, and

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