45 wholly on land, the fact that the cause of damage originated on the water, subject to admiralty jurisdiction, does not make the cause one for admiralty. The law administered in the admiralty courts of this country, on the other hand, embraces, not merely what is peculiar to the maritime law, but also much of the municipal local law, derived from the constituted order of the states, and all competent state and national legislation. What is peculiar to the maritime law, or that which, by its interstate or international relations, would be incompatible with diverse state legislation, can be changed by congress alone, which, by implication, has the general power of legislation on the maritime law. This does not exclude state leg islation upon maritime subjects of a local nature, nor legislation under the police power for the preservation of life or health, not incompatible with interstate and international interests, in the absence of legislation by congress. A state statute giving damages for death by negligence, as applied to a negligent collision on navigable waters within the state, does not infringe those conditions, and is valid.48 Torts not Recognized in Courts of Equity. Courts of equity afford redress in cases where the common law affords no remedy, or an inadequate one. The normal remedy for a tort-compensation-is administered by the court of common law, not by a court of equity. When that remedy is sufficient, equity will not interfere. But there are cases where equity's peculiar remedies are necessary to do justice, and in these equitable interference is always granted.*7 In other words, the jurisdiction of equity may be concurrent. The tendency is to do away with the artificial system which kept 45 The Plymouth, 3 Wall. 20. 46 The City of Norwalk, 55 Fed. 98. See Sherlock v. Alling, 93 U. S. 99. Damages given by a state statute for death by negligence may be recovered on a libel in personam for death by a negligent collision on navigable waters within the state (55 Fed. 98, affirmed). The Car Float No. 16, 9 C. C. A. 521, 61 Fed. 364; McCullough v. New York, N. H. & H. R. Co., Id.; New York & N. Steamboat Co. v. The Transfer No. 4, Id. 47 Post, p. 353, "Remedies." As to the application of the equitable doctrine of subrogation to conversion, see Tobin v. Kirk, 73 Hun, 229, 25 N. Y. Supp. equity and common-law courts and proceedings distinct. the provisions of the law of so-called "Code States," this has been essentially accomplished. How it could have been done at common law is to be seen in the Pennsylvania system of administering equity through common-law forms.48 The two systems of jurisprudence must, of course, remain separate. In some cases the injured one may elect to seek an equitable remedy under equitable principles, or to pursue his right to damages for tortious wrong under the common-law principle. Thus, in case of deceit, the injured one may sue in tort for damages produced by misrepresentation, or he may go into equity, have a fraudulent contract reformed, and then specifically enforced.49 At one time the courts of equity and the courts of common law had concurrent jurisdiction to give compensation for fraud.50 ADMINISTRATION OF THE LAW OF TORTS BY COURTS OF COMMON LAW. 7. The common law provided two forms of personal açtion (a) Ex contractu and (b) Ex delicto. Actions at common law were commenced, in its early day, by the is suance of an original writ. the registrum brevium.51 The ancient forms of writs were kept in There were three prescribed forms of ac 48 Laussatt on "Equity Administered through Common Law Forms in Pa.” 49 Fetter, Eq.; Pom. Eq.; Bisph. Eq. 50 Slim v. Croucher, 1 De Gex, F. & J. 401; Peek v. Gurney, L. k. 13 Eq. 79. But see Wigsell v. School, etc., 8 Q. B. Div. 357; Whitham v. Kershaw, 16 Q. B. Div. 613. 51 The common-law writs were always written (2 Reeves, Hist. 266); were settled verbatim by the time of Edward III.; were printed in the register in the reign of Henry VIII. (4 Reeves, Hist. 429); and were declared fixed and immutable, unless changed by authority of parliament (Bracton, de ex. lib. 5, c. 17, § 2). According to Lord Coke, the register antedates the Conquest (A. D. 1066). Pref. 10 Rep. p. xxiv.; 4 Inst. 140; Dugd. Orig. p. 56. Mr. Bige low, as to this statement (Lead. Cas. 16), cites as authority for its improbability, Hicke's Thesaurus Dissertatio Epist. p. 8. tions which it recognized, distinguished by subject-matter,-as real, personal, and mixed. Real actions were for the specific recovery of real property only. For a long time they have been extinct. Mixed actions were for the specific recovery of real property, and for damages for an injury thereto,-as ejectment. Personal actions were for the recovery of a debt, or a specific personal chattel, or of damages for a breach of contract, or of satisfaction in damages for some injury to the person or to real or personal property. Personal actions. were, in form, ex contractu or ex delicto.52 53 Among the earliest actions ex delicto was the action of trespass. This lay for the recovery of damage for injury to the person, property, or relative rights of another; but only where such injuries. have been committed with force, actual or implied. It lay only where there was a direct, immediate invasion of another's right. When the wrong was with force to the person, as in assault and battery or false imprisonment, it was trespass vi et armis.54 When it consisted in unlawfully breaking a man's close, it was trespass quare clausum fregit.55 When it was committed by carrying away his chattels, it was trespass de bonis asportatis.56 However, as new causes of action arose, no matter how great was his wrong, the individual, if he could find in the register of writs not writ to fit his case, had no remedy. To supply this deficiency in the law adjective, the celebrated statute of Westm. II. (13 Edw. I.) was enacted. This provided that as often as it should happen that in one case a writ was found, and in a like case (in consimili casu) falling under the same right, and requiring like remedy, no writ was to be found, the clerks should agree in making a writ, or adjourn the complaint until, and refer the matter to, the next parliament. Under this statute new writs were copiously produced.57 Out of it 52 Chit. Pl. 110; Ship. Com. Law Pl. 2. 53 Ship. Com. Law Pl. 72. Laws as to trespass not fully settled until time of Edward I., although mentioned by Bracton. 2 Reeves, Hist. 149. 54 Id. Trespass vi et armis lay for negligence. Percival v. Hickey, 18 Johns. 256. 55 Ship. Com. Law Pl. 74. Generally, as to forms of trespass, see 3 Bl. Comm. 120, 151. And see 1 Chit. Pl. 192, 193. 56 Id. 73. 57 3 Bl. Comm. 49; Steph. Pl. 6. LAW OF TORTS-2 arose the celebrated actions on the case, viz. action of assumpsit, which became in time an action ex contractu although it retained traces of the ex delicto character of its origin; the action of detinue, which is sometimes regarded as ex contractu, and sometimes as ex delicto, and sometimes as neither; 58 the action of conversion; and (the almost distinctive 5 action ex delicto) trespass on the case. This action (trespass on the case) lay, not for direct or immediate invasion of another's right, but for conduct in which the wrong consisted in consequential damage. In trespass, the liability was absolute. In case, the liability was dependent on results. Case lay for injury to absolute rights, not involving force, and where the damages were consequential, as for keeping dangerous animals. It lay also for invasion of relative rights, as seduction, or alienation of affection. It lay also especially for the large class of cases known now by the vague name of "negligence." 03 When trespass lay, and when case, was, at common law, an important question of pleading, because if the pleader mistook his remedy, he would be dismissed from court." 64 Since the abolition of forms of action, 62 60 61 58 Pol. Torts; Gilb. 6; Steph. Pl. 18b; Peabody v. Hayt, 10 Mass. 35. 59 Mills v. U. S., 48 Fed. 738; 1 Chit. 99; Browne, Action, 318, note f. 60 Cooper v. Landon, 102 Mass. 58; Ship. Com. Law Pl. 45, and cases there cited. 61 Sarch v. Blackburn, 4 Car. & P. 297; Stumps v. Kelley, 22 Ill. 140. And see, generally, Cooper v. Landon, 102 Mass. 58; Singer v. Bender, 64 Wis. 172, 24 N. W. 903; Henry v. Ry. Co., 139 Pa. 289, 21 Atl. 157. 62 Clough v. Tenney, 5 Me. 446; Hornketh v. Barr, 8 Serg. & R. 35. 63 Coggs v. Bernard, Smith, Lead. Cas., 2 Ld. Raym. 909; Samuel v. Judin, 6 East, 333; Dearborn v. Dearborn, 15 Mass. 315; Church v. Mumford, 11 Johns. 479; Hamilton v. Plainwell Water-Power Co., 81 Mich. 21, 45 N. W. 648. As to the distinctions as to force and immediate and direct or immediate and consequential injuries, see 1 Chit. Pl. (16th Am. Ed.) 140, and cases cited; Cotteral v. Cummins, 6 Serg. & R. (Pa.) 341; Winslow v. Beal, 6 Call (Va.) 44; Scott v. Shepherd, 3 Wils. 403; Beckwith v. Shordike, 4 Burrows, 2093. 64 The difference between trespass and case is well illustrated by Espinasse. "Trespass on the case is an action brought for the recovery of damages for acts unaccompanied with force, and which in their consequences only are injurious; for, though an act may be in itself lawful, yet if, in its effects or consequences, it is productive of any injury to another, It subjects the party to this action." 2 Esp. N. P. 597. [Cf. Wakeman v. Robinson, 1 the mere technical question of procedure has lost importance. 65 But the deep-seated distinctions in the law substantive involved are as much legal battle grounds as ever." 67 8. Through these two classes of personal actions, the common law administered four kinds of obligations, or provided remedies for four kinds of recognized substantive rights, viz.: (a) Contracts pure and simple; (c) Torts pure and simple; Contract. The common law administered obligations of contracts pure and simple. All true contracts grow out of the intention of the parties Bing. 213.] Thus, where the defendant put up a spout on his own premises, this was an act lawful in itself; but when it produced an injury to the plaintiff by conveying the water into his yard, trespass on the case was adjudged to lie for such consequential injury. Reynolds v. Clarke, 1 Strange, 634. So shooting of a gun, which in itself is an indifferent and lawful act, yet when by it the plaintiff's decoy was injured this action was held to lie. Keeble v. Hickeringill, 11 Mod. 131. Again, where the plaintiff declared in case that the defendant furiously, negligently, and improperly drove his cart against the plaintiff's carriage, that it was overturned and broken, this was held ill on demurrer, and that the action should be trespass vi et armis. Day v. Edwards, 5 Term R. 648. As to election between trespass and case, see Blin v. Campbell, 14 Johns. 432. Cf. Percival v. Hickey, 18 Johns. 256. And see Wilson v. Smith, 10 Wend. 324; Seneca R. R. Co. v. Auburn, 5 Hill. 170. 65 New Orleans J. & G. N. R. Co. v. Hurst, 36 Miss. 660; Howe v. Cooke, 21 Wend. 28. And see Ricker v. Freeman, 50 N. H. 420. 66 The importance of the distinction from a theoretical standpoint is manifest in discussions of the ultimate basis of liability in tort. Practically it is of great moment in determining, for example, connection as cause (conspicuously in questions of damage), defense available (as of contributory negligence, independent contractor), the kind and extent of proof required of plaintiff (as the exercise of due care under the circumstances, or the breach of absolute duty). See Holmes v. Mather, L. R. 10 Exch. 261; Johnson v. Philadelphia & R. R. Co., 163 Pa. St. 127, 29 Atl. 854. 67 The propriety of this use of the term "obligation" has been questioned. |