Damnum sine injuria.

plainly expressed, means that when a person has suffered what in the eyes of the law is looked upon as a legal injury, he must have a corresponding right of action, even though he has suffered no harm. This is illustrated by the well-known case of Ashby v. White (d), which was an action against a returning officer for maliciously refusing to receive the plaintiff's vote on the election of burgesses to serve in Parliament, and it was held that the defendant having so maliciously refused to receive the plaintiff's vote, although the members for whom he wished to vote were actually elected, and therefore he suffered no damage, yet he had a good right of action, for he had a legal right to vote, and that right had been infringed.

On the other hand, there are many cases in which a person, although he suffers damage by the act of another, yet has no right of action, because there has been no infringement of what the law looks upon as a legal right, and this is expressed by the maxim, that Damnum sine injuria will not suffice to enable a person to maintain an action. Thus, in an action of seduction, unless loss of service by the plaintiff is proved, the action cannot be maintained, for though the plaintiff may have suffered damage without the loss of service, yet he has not sustained what in the eyes of the law is looked upon as an injury. The best instance, however, on this point, is perhaps found in the principle that a person may deal with the soil of his own land as he thinks fit, so that if he digs down and thus deprives his neighbour of water that would otherwise percolate through the land, yet although this operates to the great detriment of such neighbour, it does not constitute the invasion of a legal right, and will not form any foundation for an action (e). And if a subsidence be caused

(d) 1 S. L. C. 264; Lord Raymond, 938.

(e) Acton v. Blundell, 12 M. & W. 324; Chasemore v. Richards, 7 H. L. C. 349.

by the withdrawal of such underground water the same rule holds good (f). It is merely Damnum sine injuria. However, in the words of Mr. Broom, in his Commentaries on the Common Law,' "in the vast majority of cases which are brought into Courts of Justice, both damnum and injuria combine in support of the claim put forth, the object of the plaintiff usually being to recover by his action substantial damages" (g). When both injuria and damnum are combined, then, as a general rule, there is always a good cause of action, except indeed when there is some special reason to the contrary, e.g. some matter of public policy.

Having, therefore, in these few remarks, endeavoured to introduce the student to the subject of common law, and the nature of the legal right in respect of which a person has a remedy, let us proceed to our first chief subject, viz. that of contracts.

(f) Popplewell v. Hodgkinson, L. R. 4 Ex. 248.

(9) Broom's Coms. 116; and see generally upon the subject discussed above, Broom's Coms. 80-116.

PART I.

OF CONTRACTS.

contract, and

CHAPTER I.

OF THE DIFFERENT KINDS OF CONTRACTS, THEIR BREACH,

AND THE RULES FOR THEIR CONSTRUCTION.

Definition of a A CONTRACT may be defined as some obligation of a legal different divi- nature-either by matter of record, deed, writing, or word of mouth-to do, or refrain from doing, some act. Contracts are usually divided as of three kinds, viz. :

sions of contracts.

1. Contracts of record, i.e. obligations proceeding from some Court of record, such as judgments, recognizances, and cognovits.

2. Specialties, i.e. contracts evidenced by writing, sealed and delivered.

3. Simple contracts, i.e. those not included in the foregoing, and which may be either by writing, not under seal, or by mere word of mouth.

Contracts may also be divided as to their nature into

1. Express contracts, i.e. those the effect of which is openly expressed by the facts; and

2. Implied contracts, viz. those which are dictated by the law; as, for instance, if a person goes into a shop and orders goods, his contract to pay their proper value is implied.

Again, contracts are divided, with reference to the time of their performance, into

1. Executed contracts, and

2. Executory contracts.

important.

Having, therefore, three different divisions of con- Contracts of record are only tracts, let us proceed to consider each of them separ- technically ately; and as to the first division, the most important the most kind of contracts, technically speaking, are contracts of record, they proceeding from some Court of record, but in a practical sense they may be set down as the least important, for, with the exception of judgments, they are not of constant occurrence, and even judgments, considered in the light of contracts simply, are not entitled to much discussion, although, considered in other ways, they are of great importance. As we have given as instances of contracts of record, judgments, recognizances, and cognovits, it will be well at the outset to have a clear understanding of each, and then consider the peculiarities of contracts of record generally, but yet mainly with reference to judgments as being the only contracts of record that ordinarily or usually occur.

A judgment may be defined to be the sentence of Definition of a judgment. the law pronounced by the Court upon the matter appearing from the previous proceedings in the suit. It is obtained by issuing out a writ of summons, on which the defendant either makes default, whereby judgment is awarded in consequence of such default, or the case is tried and on a verdict judgment awarded in accordance with it (h).

A recognizance is an acknowledgment upon record Definition of a recognizance. of a former debt, and he who so acknowledges such debt

(h) See Indermaur's Manual of Practice, Part II., chaps. 2, 5, 7.

a cognovit.

Essentials as to execution.

to be due is termed the recognizor, and he to whom or for whose benefit he makes such acknowledgment is termed the recognizee. It is very similar to a bond, but whereas a bond creates a new debt, a recognizance is merely an acknowledgment upon record of an antecedent debt (i).

Definition of a A cognovit is an instrument signed by a defendant in an action actually commenced, confessing the plaintiff's demand to be just, and empowering the plaintiff to sign judgment against him in default of his paying the plaintiff the sum due to him within the time mentioned in the cognovit (k). By 1 & 2 Vict. c. 110, it was provided for the protection of ignorant persons, who might be persuaded into executing a cognovit, that it must be attested by an attorney (1), and this protection has been still further extended by 32 & 33 Vict. c. 62 (m), which provides that "after the commencement of this Act (n) a warrant of attorney to confess judgment in any personal action, or cognovit actionem, given by any person shall not be of any force unless there is present some attorney of one of the superior courts on behalf of such person expressly named by him, and attending at his request, to inform him of the nature and effect of such warrant or cognovit before the same is executed, which attorney shall subscribe his name as a witness to the due execution thereof, and thereby declare himself to be attorney for the person executing the same, and state that he subscribes as such attorney;" and also (0) that "if not so executed it shall not be rendered valid by proof that the person executing the same did, in fact, understand the nature and effect thereof, or was fully informed of the same." In this enactment

(1) All attorneys are now styled solicitors; Jud. Act, 1873, sect. 87. (m) Sect. 24.

(n) 1st January, 1870.

(0) Sect. 25.