" 2 High on Injunctions (4th Ed.) § 1686a. See, also, McGraw v. Little, 198 Ala. 553, 73 So. 915; Littleton v. Burgess, 16 Wyo. 58, 91 P. 832, 16 L.R.A. (N.S.) 49; Cook v. Chapman, 41 N.J. Eq. 152, 2 A. 286; Loofborow v. Shaffer, 29 Kan. 415; Burnett v. Stark Co., 155 Iowa 588, 136 N.W. 670; Richardson Lubricating Co. v. Bedell, 209 Mo. App. 243, 237 S.W. 192; Creek v. McManus, 13 Mont. 158, 32 P. 675; Pelkey v. Surety Co., 143 Minn. 176, 173 N.W. 435; Porter v. Hopkins, 63 Cal. 53; Joplin Gas Co. v. City of Joplin, 182 Mo. App. 422, 167 S.W. 660; 16 L.R.A. (N.S.) 60-70. We are of the opinion that the language of the act and the weight of authority in analogous cases justify the conclusion that the attorney fees incurred by defendants in the trial of the cause below, whereby the injunction pendente lite was terminated or dissolved, are recoverable as damages upon the injunction bond; for without such a trial the injunction would have continued in force, and the restrictions wrongfully imposed upon defendants by it would actually have become permanent.
) quoting Black's Law Dictionary , 420–21 (8th ed. 2004).See , e.g. , Morgan v. Norfolk S. R. Co. , 98 N.C. 247, 3 S.E. 506 (1887) (harm in fact was damnum absque injuria when caused by noise reasonably necessary to operation of railway); Cook v. Chapman , 41 N.J. Eq. 152, 14 Stewart 152, 2 A. 286, 291 (1886) ("There is such a thing known to the law as damage without injury, and this occurs where damage results from an act or omission which the law does not esteem an injury."); Jacobus v. Colgate , 217 N.Y. 235, 111 N.E. 837 (1916) (Judge Cardozo writing for the court and explaining plaintiff's action based upon a trespass in another state, although cognizable when filed in New York pursuant to statute, the action was not authorized in 1882 when the trespass occurred (or until the 1913 statute), and while a party had "a moral right to redress" "he had no legal right to redress" until creation of the statute which had to be treated as prospective).See , e.g. , Ridings v. Maze , 2018 OK 18, ¶¶ 11-12, 414 P.3d 835, 838-839 (when the basis for liability rests solely on the fact that plaintiffs witnessed an accident, and the basis does not include an allegation a defendant physically injured them (i.e. , they possess the status of "direct victims"), then plaintiffs have no basis for recovery an
In addition, a rule to show cause why the temporary injunction should not be made permanent was issued. In 1886, the New Jersey Court of Chancery, in Cook v. Chapman, 41 N.J. Eq. 152, 156, 2 A. 286, enunciated a rule governing the recovery of damages upon bonds conditioned similarly to the one in issue. A like rule prevails in most jurisdictions throughout the country.
Plaintiff also seeks a judgment eliminating from the counterclaim the demand for recovery of costs and counsel fees incurred in defending the alleged maliciously prosecuted action. This request is predicated on Cook v. Chapman, 41 N.J. Eq. 152 ( Ch. 1886), where costs and counsel fees were allowed following the dismissal of an injunction wrongfully obtained. However, Vice-Chancellor Van Fleet granted the allowances because an injunction bond had been posted and declared forfeited, and he said that in the absence of such a bond, "as a general rule" the right to them would not exist.
Public policy favors free access to the courts, which is the reason such costs in the absence of statutory provisions explicitly making them part of taxable costs or otherwise authorizing their imposition on other parties are damnum absque injuria and without redress. 1 Corpus Juris "Actions", Section 60 (d), page 967 ; Textileleather Corp. v. American Mut. Insurance Co., 110 N.J.L. 483 (E. A. 1938); El. v. Toohey, 125 N.J.L. 150, affirmed 125 N.J.L. 510; and see Cook v. Chapman, 41 N.J. Eq. 152 (Ch. 1886). Such items are "the natural burden of any individual involved in litigation, whether or not he is successful".