¶1 The first count, for an injury at common law, cannot be sustained, because there was no proof of negligence.
¶2 The second count, under the statute, cannot be sustained; for, however it may be in respect to an indictment, or an action for penalty, we concur with-his Honor that, in an action for the injury done to the plaintiff, proof that he waived his right to a notice in writing, is an answer to the action. The notice being required for his benefit, it may, of course, be waived in respect to himself; and if damage ensue, in the absence of proof of negligence on the part of the defendant, it is damnum absque injuria, and falls under the maxim voluntas non fit injuria. Indeed, to maintain an action in favor of one who is present and concurs in the act, would be to aid him in committing a fraud on the defendant.
¶3 There is no error.
¶4 Judgment affirmed.