THE DOCTRINE OF DAMNUM ABSQUE, INJURIÂ CONSIDERED IN ITS RELATION TO THE LAW OF TORTS. BY EDWARD P. WEEKS, AUTHOR OF A TREATISE COUNSELLOR AT LAW, V ON ATTORNEYS AND COUNSELLORS AT LAW"; AND SAN FRANCISCO: SUMNER WHITNEY & CO. 1879. LELAND STANFORD, JR.. UNIVERTY 57,646 Copyright 1879, BACON & COMPANY, PRINTERS, SAN FRANCISCO, CAL. PREFACE. The object of this book is to take a general survey of the doctrine known to the law as that of damnum absque injuriâ. It is proper to have it distinctly understood that it is not an attempt at a treatise or a commentary on the law of torts. The details of the distinction between a case of damnum absque injuriâ and a case of tort will be found in the first and introductory chapter, and the law of torts has been treated of in various works now before the public. But I have considered the subject in its relation to the law of torts, and for reasons to be presently given, in that relation only. I have therefore found it convenient to use many of the headings or subdivisions of that branch of the law under which to group the result of my labors upon the matter in hand. But a tort being a wrong independent of contract, a "legal wrong" that is to say, a wrong in contemplation of law, and therefore susceptible of a remedy-is precisely what a case of damnum absque injuriâ is not, the latter being neither a "legal wrong" nor susceptible of any remedy. So that my object is to deal with, and to collect sufficiently to illustrate the subject, those cases of loss and damage for which the law provides no remedy; cases where the theory of the law is that no "wrong" has been committed as the law understands the term-cases of loss, damage, or injury, "without wrong," absque injuriâ. As a correlative subject, some of those cases will be considered where there may be a technical wrong committed, but through some defect in the plaintiff's right, title, or interest, or through the absence of these things, the law presumes that he has no right which can be damaged at all. These are properly cases of injuria sine damno, wrong without actual damage, as contradistinguished from those where the plaintiff's right to the thing injured is complete; yet the injury is irremediable at law, because, however great the loss may be, the law declares that no wrong has been committed. In neither case is there any remedy. It is hoped that such an inquiry as this may prevent much useless litigation, expensive to the client and perhaps vexatious and unremunerative to the attorney, since such cases more than any others are taken by the attorney upon contingent compensation, where this is allowed. While a party may consider himself aggrieved at not being provided with a remedy by the laws of his country, it may be of considerable advantage to him to know the fact before entering into litigation, where in the ordinary course of events defeat is inevitable, assuming that the case is properly presented on the adverse side, and that the court is informed of the law. torts. It is proposed to treat the subject in its relation to the law of The author considers this its legitimate sphere. In a broad sense, when a promissory note becomes barred by the Statute of Limitations, or when a creditor is compelled by a bankrupt or insolvent law to take a small percentage instead of the whole claim, or when a verbal agreement falls within the purview of the Statute of Frauds, a person suffers a loss and it is a loss without a remedy, but it is not what lawyers understand by the term damnum absque injuriâ. I have, therefore, rejected discussions of the law of contracts and mere breach of contract, and have considered the subject solely in its relation to the law of torts, to which grand division of the law I consider that it properly belongs. It has been sometimes said that a tort may be dependent upon or independent of contract. I prefer the definition already |