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Part II.—In what Cases an Action will lie. 9

Sect. 1.

Ubi jus, ibi remedium.

Infringement of public right.

6. Where the right infringed is a public right, and where the a grievance is a grievance to the whole community equally, there is similarly a remedium ; but in this case the appropriate remedy is by proceedings of a public nature, i.e., indictment or an action by the Attorney-General, as the guardian of the public's rights (b). Even in this case an individual who has suffered particular damage beyond that sustained by his fellows, e.g., who has been injured by an obstruction to a highway, may maintain an action in his own name (c).

Sect. 2. Injuria absque damno.

Where actual damage essential.

7. It is apparent from what has been said above that there cannot in law be an injuria (strictly so called) absque damno. There are, however, numerous cases in which, unless there be actual damage, there can be no injuria and no cause of action. The distinction depends upon a distinction in the nature of " rights." Some rights are absolute, e.g., a man may have a right to claim that some act shall be done or omitted (simpliciter); others are only qualified, e.g., he may have a right to claim that some act shall not be done or omitted to his damage; in the latter class of case damage is an essential part of the action, and unless there is actual damage there is no injuria (d). Numerous instances may be cited of rights thus qualified. Thus a landowner has a right to demand that his land (in its natural state) shall not be " let down" by excavations on his neighbour's land; if it be so let down, he may maintain an action in respect of the damage; but unless subsidence follows no "right" is infringed by the most extensive excavations of his neighbour (e). So if a landlord ostensibly distrain for more rent than is due to him, the tenant's right is not infringed unless goods are in fact seized of a greater value than the amount of rent actually due from him, for otherwise he suffers no damnum (f). Again, unless an execution creditor is actually damnified by a sheriffs mistake in making a false return to a writ of execution, he has no cause of action in respect thereof (g).

For a consideration of the different types of " rights" recognised

(b) " Suppose the defendant had beat forty or fifty men, the damage to each one is peculiar to himself, and he shall have his action. Indeed, where many men are offended by one particular act, there they must proceed by way of indictment, and not of action, for in that case the law will not multiply actions" (Ashby v. White, 1 Smith, L. C. (11th ed.), at p. 262, per Holt, C.J.).

(c) In the absence, of course, of contributory negligence (Lyon v. Fishmongers' Co. (1876), 1 App. Cas. 662; Fritz v. Hobson (1880), 14 Ch. D. 542). "A man shall have his action for a public nuisance if he is more incommoded than others" (per Fitzherbert, J., Y. B. 27 Hen. 8, fol. 27, pl. 10; see Bedford (Duke of) v. Ellis, [1901] A. C. 1, 11, 12. See also Ricket v. Metropolitan Rail. Co. (1867), L. R. 2 H. L. 175; Winterbottom v. Lord Derby (1867), L. R. 2 Ex. 316; Tottenham Urban District Council v. Williamson & Sons, [1896] 2 Q. B. 353; Watson v. Hythe Corporation (1906), 22 T. L. R. 245.

(d) See per Lord Blackburn in Darley Main Colliery Co. v. Mitchell (1886), 11 App. Cas. 127, at pp. 141, 142.

(e) Backhouse v. Bonomi (1861), 9 H. L. C. 503; Darley Main Colliery Co. v. Mitchell supra; Att.-Gen. v. Conduit Colliery Co., [1895] 1 Q. B. 301.

(f) Tancred v. Leyland (1850), 16 Q. B. 669; Glynn v. Thomas (1856), 11 Exch. 870; French v. Phillips (1856), 1 II. & N. 564.

(g) Wylie v. Birch (1843), 4 Q. B. 566; Stimson v. Farnham (1871), L. R. 7 Q. B. 175.