ence with his right in rem, there is no (actionable) tort. And it is inaccurate. Interference with rights essentially, if not technically or accurately, in personam, may constitute a tort." Other Definitions. "10 It is quite common to define a tort by ringing changes on the fallacious infelicity: "A tort is a wrong independent of a contract.” 1 To so define a tort is to ignore the fact that there are other noncontractual wrongs. A breach of trust, adultery, or the refusal to pay just compensation for a relief to a vessel in distress, are wrongs; but none of them are torts, although they are all noncontractual wrongs.11 Such a definition is like a definition of a horse as a quadruped. And, on the other hand, while rights involve, in the law of torts, a distinction from those arising out of Further, as to rights in rem and in whom duties are owed in tort, it Pig. Torts, 5, etc.; Shearw. Torts, 2. personam, see 1 Aust. Jur. (3d Ed.) p. 49; With respect to persons to whom and by would appear that there are four classes: (1) Some duties are owed to all persons by all persons; that is to say, to and by indeterminate persons. These duties have general regard to the three great fundamental rights in rem, as to person, property, and reputation; as in cases of fraud, assault and battery. negligence in its strict sense, and libel or slander. (2) Some duties are owed by certain determinate persons to other persons in corresponding situations; that is to say, to and by determinate persons. This is a special modification of the three fundamental rights which springs out of certain facts constituting a quasi contract or a quasi tort, and giving rise to an action ex contractu or an action ex delicto. Statutory duties are often of this class. (3) There are duties owed by persons in particular situations to all persons, or duties imposed on certain determinate persons to indeterminate persons. Thus the mas ter is liable to the community for the negligence of his servant; the owner of ferocious animals, of cattle, or of other things having an active tendency to do damage, such as a reservoir, owes the duty of insuring the safety of the rest of the community. (4) Duties are owed by all persons to persons in a particular situation, or by indeterminate persons to determinate persons. Thus, every one is bound to respect the property of others; one, maliciously causing a breach of contract is liable to all parties to the contract injured by the breach. The whole community owes duties to persons in the possession or ownership of property. Pig. Torts, 5-13, inclusive; Oliver Wendell Holmes, Jr., 7 Am. Law Rev. 652. 10 Clerk & L. Torts, 1 (with this addition: "For which the appropriate remedy is a common-law action"). 11 Pol. Torts, p. 3. contract, there is also a distinction from a vast array of other rights, as right of trial by jury, the right to file a mechanic's lien, or to foreclose a mortgage, or the rights acquired by adverse possession. This definition is as defective as would be the definition of the horse as belonging to a class of animals independent of the horned animals.12 Moreover, a class of torts conveniently called quasi torts arise out of a state of facts of which a contract is an essential part. Indeed there is good authority for saying that when a contract is broken an action on the contract or an action on the tort for the breach of the duty imposed by the contract may be brought.18 The famous saying of Bagley, J., in Rex v. Commissioners of Sewers of Pagham,1 is frequently converted into a definition: "If a man sustains damages by the wrongful act of another, he is entitled to a remedy; but to give him that title two things must concur,—damage to himself and wrong by another." This definition is fairly subject to criticism. "That an action in case will lie when there is concurrence of actual damage to plaintiff and wrongful act by defendant is a truism, yet, unexplained, misleading." 15 Perhaps the most vital objection to this definition is that it leads to merely verbal reasoning on the words "damage" and "wrong." THE ADJECTIVE AND SUBSTANTIVE LAW OF TORTS. 2. This definition of a tort may be conveniently considered as involving a portion of (a) The law adjective and (b) The law substantive. 12 Innes, Torts, § 6. 13 Broom, Comm. (5th Ed.) 660; Ball, Torts, 4; Boorman v. Brown, 3 Q. B. 511 526; Rich v. New York Cent. R. Co., 87 N. Y. 382 (collecting and commenting on definitions). 14 Rex v. Commissioners of Sewers of Pagham, 8 Barn. & C. 355-362. 15 Chambers v. Baldwin, 91 Ky. 121, 15 S. W. 57. A very simple, but in many respects admirable, definition suggested is: "A tort is a breach of duty fixed by municipal law, for which a suit for damages may be maintained." It will subsequently be seen that the duties for the violation of which an action in tort can be maintained against a common carrier or a 3. Under the law adjective will be considered the place the law of torts holds with respect to other matters of judicial cognizance; specifically: (a) That the remedy for a tort is civil and not criminal; (b) That the law of torts is administered by courts of common law only; and (c) The administration of the law of torts by the courts of common law. 4. The law of rights, or substantive law of torts, will be treated as involving: (a) The parties to the wrong, whether (1) The tort feasor, the defendant in action on torts, or (2) The injured one, the plaintiff in action on torts; and (b) The wrong itself or the tortious conduct. The worst objection to the title "torts," perhaps, is that it puts the cart before the horse; that legal liabilities are arranged with reference to the forms of action allowed by common law for enforc ing them, the substantive under the adjective law.10 Accordingly, to follow the historical developments, the law adjective naturally comes up first for consideration; then the law substantive. In this chapter it will be attempted to briefly discuss the definition on these lines, and to show in compact form the general nature of a tort, and of the principles on which liability for it is based. The remainder of the general part will be devoted to the development and further discussion of matters which will be briefly stated in this chapter. master are really fixed by municipal law, although they may be also incorporated in a contract. 16 Oliver W. Holmes, Jr., in 7 Am. Law Rev. 652-659. "In the common law the only sure way of ascertaining legal obligation, and the most convenient way of arranging this, is by considering the remedy by which the obligations are enforced. Rights and duties, so called, existing beyond the limits of legal remedy, may be matter of enlightened curiosity and moral and metaphysical speculation, but they are not violations of common law." American note to Coggs v. Bernard, 1 Smith, Lead. Cas. 411. LAW ADJECTIVE-TORTS AND CRIMES. 5. The law of torts is the common border land of civil and criminal and of public and private law. The same conduct may be both a tort and a criminal wrong, but a criminal wrong is not necessarily a tort, nor is a tort necessarily a criminal wrong. A tort differs from a crime(a) As to the mental attitude of the wrongdoer. (b) As to the consequences of the wrong, and (c) As to redress or remedy. Torts and Crimes not Convertible. tort or a crime. Thus, one com The same state of facts may constitute either a Indeed most crimes may also be regarded as torts. mitting an assault with an intent to kill commits a crime for which he may be arrested, and does damage which may be recovered by the person assaulted in a civil action. Similarly, seduction, libel, nuisance, trespass, conversion, and even deceit may have both tortious and criminal aspects. Until the time of Bracton (A. D. 1250) personal injuries were not the subject of civil action.17 Even after that period, these subjects were treated under the head of criminal law, and the defendant in such cases, when sued by civil process, was compelled not only to compensate the plaintiff but also to pay an attendant fine to the king.18 A trace of this quasi criminal nature of a tort is left in the allowance to the injured person of punitive or exemplary damages where the wrong is willful or malicious; because malice is the mens rea which is an indispensable ingredient of a crime. A criminal wrong is not always a tort. Thus, treason cannot be called a tort. Nor does the violation of a public duty always create 17 1 Spence, 121. 18 Pol. Torts, § 3; Innes, Torts, § 33; Finch, Com. Law (1654; Ed. 1759) 198. "Civil redress was often given in criminal actions." Bigelow, Lead. Cas. 18. And see historical portion of note to "Deceit," "Assault and Battery," "Trespass upon Property," and "Conversion." For example, the early writ of deceit in the register ran: "The King to the Sheriff of L., greeting: "If A. shall make you secure, etc., P. & C. as well to answer us as well as the aforesaid A., wherefore he, etc." Fitzh. Nat. Brev. 96a, 97b. So, in ap a right of action in a private citizen damaged thereby.19 A public nuisance is a criminal wrong. It may or may not be also a private wrong or tort. It is not a private wrong unless the complaining party has suffered some special hurt apart from the injury done the whole community.20 Many torts, like simple negligence, malicious interference with rights, accidental trespasses, cannot be regarded as criminal wrongs.21 Even nuisance may be a civil and not a criminal wrong.22 "Accountability for civil injuries is even greater than for criminal acts." 23 Intention. In some classes of Intention is the essence of criminal liability. cases of the law of torts this is also true, but in others, and perhaps ordinarily, the law of torts does not depend upon intention, or the mental attitude of the wrongdoer. In consequence, many persons incapable of committing a crime because of mental incapacity are held liable for torts. The difference which the element of intention involves in the law of crimes and torts is well illustrated in the case where one man points a pistol which he knows is not loaded at another. In such a case he cannot be arrested for criminal assault, because of absence of any possible intention to commit an assault.2* peal of robbery, restitution of the goods taken, as well as punishment for the felony, was awarded. Bigelow, Lead. Cas., historical portion of note to "Trespassers upon Property"; 3 Bl. Comm. 146. 19 Ward v. Hobbs, 4 App. Cas. 13. 20 Wilkes v. Hungerford, 2 Bing. N. C. 281; Long v. Minneapolis (Minn.) 63 N. W. 174; Henly v. Mayor, etc., 5 Bing. 91; Proprietors, etc., of Quincy Canal v. Newcomb, 7 Metc. (Mass.) 276; Barnes v. Racine, 4 Wis. 474. 21 Contributory negligence in carelessly exposing property is no defense to proceeding for its theft. Clark, Cr. Law, 260. 22 Com. v. Webb, 6 Rand. (Va.) 726. 23 Agnew, J., in McGrew v. Stone, 53 Pa. St. 436–444. 24 Chapman v. State, 78 Ala. 463; Chase, Lead. Cas. 70; 2 Green, Cr. Cas. 271a; State v. Sears, 86 Mo. 169; McKay v. State, 44 Tex. 43; State v. Godfrey, 17 Or. 300, 20 Pac. 625. But see People v. Lilley, 43 Mich. 521, 5 N. W. 982; People v. Ryan, 55 Hun, 214, 8 N. Y. Supp. 241. There would seem to be no sound basis for this distinction. Ames, Cas. 11. See Com. v. White, 110 Mass. 407; State v. Shephard, 10 Iowa, 126; State v. Smith, 2 Humph. 457; People v. Morehouse, 53 Hun, 638, 6 N. Y. Supp. 763; Richels v. State, 1 Sneed (Tenn.) 606; Morison's Case, 1 Brown, Just. R. 394; People v. Conner, 53 Hun, 352, 6 N. Y. Supp. 220. According to |