DEFINITION. 1. A tort is an act or omission giving rise, by virtue of the common-law jurisdiction of the court, to a civil remedy which is not an action on a contract.' Derivation. The French word "tort" is derived from the Latin "torquere," to twist; "tortus," twisted or wrested aside. It is what is crooked, as distinguished from what is straight. It is the opposite of right (droit).2 Definition by Reference to Remedy. Many attempts have been made with varying success to define a "tort." The above definition of Mr. Pollock, while a negative one, seems to be least unsuccessful and unsatisfactory. It is founded upon a favorite and important distinction on which jurisprudents lay great stress, but with respect to which there is considerable difference in terminology. It is evident that there are two main ideas set forth by this definition: the conduct which constitutes a tort and the re dress which the law provides for the wrong done,-the cause of action and the remedy. Accordingly, the definition may be considered as involving (a) a portion of the general law, which defines the rights and commands the corresponding duties controlling the relations of individuals to each other,—that is to say, a portion of the law substantive; and as involving, also, (b) a portion of the general law, which provides the means by which these rights and duties are enforced and a violation of them is prevented or redressed, that is to say, a portion of the law adjective. When a 1 Pol. Torts, *4. Similarly, Mr. Bishop, in Noncontract Law. defines a tort to be "one's disturbance of another in rights which the law has created. either in absence of contract or in consequence of a relation which a contract had established between the parties." Bish. Noncontr. Law, § 4. This definition is not, however, so broad or so accurate as is Mr. Pollock's. 2 Black, Law Dict. tit. "Tort"; Bouv. Law Dict. tit. "Tort"; Jac. Law Dict. tit. "Tort"; Co. Litt. 158b; Whyte v. Rysden, Cro. Car. 20; Pol. Torts, *2. 3 Mr. Bentham and the German writers adopted the division of the law into law substantive and law adjective, or instrumental law. This arrangement Mr. Austin regards as involving a double logical error-First, because much of right exists, there must be a corresponding duty to observe that right; and a tort or a wrong may be spoken of either as a breach or violation of a duty or an infringement of a right. The law sub stantive, or the law of rights and duties, is concerned with acts or omissions complained of as a breach, or as a violation of a duty or infringement of a right. The law adjective, or the law of procedure and remedies, deals with tribunals, the forms of actions, and other means of prevention or redress. Definition by Reference to Nature of Right. This definition is clear and simple and accurate. It would not appear that so much can be said for the current definitions based on the substantive law as thus understood is the adjective or instrumental; second, because, if the law of procedure is called “droit adjectif," that term ought to be extended to the law relating to rights and duties arising from civil injury and from crimes or punishment. He proposes as a substitute primary or principle, as distinguished from secondary or sanctioning, duties. 2 Aust. Jur. lect. 45, §§ 1031-1034, lect. 46, § 1041; and see 8 Harv. Law Rev. 187-196; Pom. Rem. & Rem. Rights, c. 1. The terms "law adjective" and "law substantive" will be used in this book with considerable latitude of meaning. According to perhaps what is the most recent contribution to the subject, rights are antecedent and remedial. Antecedent rights are: (1) Rights in rem; and (2) in personam. Rights in rem are rights available against all the world, as the proprietary right of an owner of a house or land. Rights in personam are rights availing against a definite individual,-as a right of a landlord to his rent. Antecedent rights are those which exist independently of any wrong having been committed, as in the above examples. The persons clothed with them are in enjoyment of advantages not possessed by the rest of the community. A remedial right is one given by way of compensation when an antecedent right is violated. Remedial rights are also in rem and in personam (the latter being by far the most common). Proceedings to obtain a divorce, or against a ship in the admiralty division, are illustrations of the former, while proceedings against individuals who infringe antecedent rights are illustrations of the latter; and these are the subject of torts. Holl. Jur. 141; Shearw. Torts, 1, 2. 4 Whart. Neg. § 24; Emry v. Roanoke, etc., Co., 111 N. C. 94, 16 S. E. 18. A legal duty is that which the law requires to be done or forborne to a determinate person, or to the public at large, and is a correlative to a right vested in such determinate person, or in the public at large. Whart. Neg. § 24; 16 Am. & Eng. Enc. Law, 412, and cases cited. Austin's definition of a right is that "a party has a right when another or others are bound or obliged by the law to do or forbear towards, or in regard of, him." 1 Jur. lect. 16, p. 277, sub. 576. the distinction between rights in rem and rights in personam. Of these, the one found in Innes on Torts may be fairly regarded as the best: "A tort is an unauthorized prejudicial interference of some person, by act or omission, with a right in rem of another person." This might be called a "lucus a non lucendo"; or be said to define what is unknown by something still more unknown. Such criticism is unjust in effect. Indeed, as the misapprehension of the distinction between a right in rem and a right in personam embodied in the common law (largely through the classification of Blackstone's Commentaries) gives way to a more natural, his torically correct, and scientific division of the law, it is not unlikely that the ultimate definition of the term "tort" will be of this type. This particular definition, however, is incomplete. If the person whose right in rem is interfered with is not innocent, but has by his own wrong contributed, as a proximate cause, to the interfer Innes, Torts, introduction. The ordinary sense in which the action in rem is used, as distinguished from an action in personam, may be illustrated by the cases which hold that a seaman may recover wages either by libel in personam against the owners or masters, or by libel in rem against the ship in courts of admiralty. Sheppard v. Taylor, 5 Pet. 675-717; Temple v. Turner, 123 Mass. 125–128; Bronde v. Haven, Gil. 592; Rule 13 in Admiralty; 4 Law Q. R. 388. And see Hanley v. 16 Horses and 13 Head of Cattle, 97 Cal. 182, 32 Pac. 10; Dooley v. 17,500 Head of Sheep (Cal.) 35 Pac. 1011. 7 Mr. Lawrence Maxwell, Jr. (solicitor general of the United States) has pointed out that Blackstone "accepted an arrangement of the law, based upon an analysis of Lord Chief Justice Hale, which is now known to be indefensible as a scientific classification. Blackstone supposed he was following the system of the Roman Institutes, which, in fact, he misconceived through a wrong translation of 'jus rerum,' and a misunderstanding of the distinction in Roman law between 'jus rerum' and 'jus personarum.' The civil law was little studied in England, and Blackstone's arrangement passed there unchallenged until John Austin took the field." 2 Mich. Law J. 305 (Aug. 1893). Mr. Cooley, in The Witness, replies to Mr. Maxwell, and recognizes the value of Mr. Austin's work as beyond question, but doubts whether justice is done to Littleton, Coke, and Blackstone in the criticism that their work falls below that of Mr. Austin in arrangement, in philosophical presentation, and logical analysis. Mr. Dillon (Laws & Jur. Pa., note) has been "often led to doubt the permanent intrinsic value of Austin's labors." 8 See article by Sir Fredrick Pollock in 8 Harv. Law Rev. 187, 275, on "Divisions of Law." And see 1 Aust. Jur. lect. 16. |