So, if one build up a profitable business without competition, and a rival destroy it by legitimate means, there is no remedy, for the law encourages competition.350

In the third place, there may be damage conforming to the legal standard, and a right violated, and still no recovery by the sufferer, because the cause of the harm is either (1) inevitable accident; 351 (2) an agent who is irresponsible because of natural status (as in the case of infants, lunatics, etc.), or peculiar circumstances (as in the case of agencies of the state, judges, legislators, etc.); or (3) is so remote that it would be immaterial and unreasonable to trace consequences so far back.

THE RIGHT OR DUTY VIOLATED.

29. Conduct to give rise to an action on the tort may consist of a violation of a duty prescribed by

(a) The common law;

(b) Contract;

(c) A statute or ordinance.

SAME-COMMON-LAW DUTIES.

30. The common law is composed of recognized customs, of which reported cases are exemplifications. The development of the common law is largely due to judicial legisla

incident to the ownership of soil. Acton v. Blundell, 12 Mees. & W. 341-345; Humphreys v. Cousins, 46 L. J. C. P. 438; Chasemore v. Richards, 7 H. L. Cas. 349; Ocean G. C. M. A. v. Commissioners, 40 N. J. Eq. 447, 3 Atl. 168; Ballard v. Tomlinson, 29 Ch. Div. 115; Corning v. Troy Factory, 40 N. 1. 191; Stowell v. Lincoln, 11 Gray (Mass.) 434. As to rights and duties in constructing buildings, see Clemens v. Speed, 93 Ky. 284, 19 S. W. 660. As to lateral support, see Thurston v. Hancock, 12 Mass. 220.

350 In the celebrated Gloucester Grammar School Case (1410-1411, Hilary Term) 11 Hen. IV. p. 47. pl. 21, it was held that two masters of that sekool could not sue a third person, who started a similar school in the same place, whereby they lost in the subtraction of scholars. No one has a right to a monopoly. Accordingly no action lies for damages resulting from compotition in business. Post, p. 145, "Common Rights."

351 Ante, p. 61, "Connection as Cause." Thus there may be no liability for a trespass where the act is unintentional or involuntary.

tion. The three main heads of common-law duty with which the law of torts is concerned are:

(a) To abstain from willful injury;

(b) To respect the property of others, and

(c) To use due diligence to avoid causing harm to others.352

English Common Law.

The common law of England was composed of the customs of the realm, or a system of adjudicated rules, of which reported cases are only exemplifications.353 A simple illustration of the growth of a custom into common law is in the law of the road.354 Again, with regard to a declaration against a carrier, "originally the practice was to set out a custom of the realm. That was discontinued because the custom of the realm became the law of the realm, and the courts take notice of it. An action based on custom is in substance a tort." 355 Again, mining customs became valid laws because of the acquiescence of the people.356

352 Pol. Torts, § 23.

353 But it is commonly supposed by writers on jurisprudence (Roman, English, German, and others) that law shaped upon customs obtains as positive law, dependently of the sanction adjected to the customs by the state. It is supposed, for example, by Hale and Blackstone, and by other writers on English jurisprudence, that all the judiciary law administered by the common-law courts, excepting the judiciary law which they have made upon statutes, is customary law, and that, since this customary law exists as positive law by force of immemorial usage, the decisions of those courts have not created, but have merely expounded or declared it. 2 Aust. Jur. lect. 30, p. 27.

354 Post, 877, "Negligence."

355 Coggs v. Bernard, Smith, Lead. Cas. (9th Am. Ed.) 354, note.

356 As in California, in case of erection of a dam flooding other claims. Stone V. Bumpus, 46 Cal. 218; Morton v. Solambo Copper Min. Co., 26 Cal. 527; Packer v. Heaton, 9 Cal. 569; Strang v. Ryan, 46 Cal. 34; St. John v. Kidd, 26 Cal. 264; Harvey v. Ryan, 42 Cal. 626. And see Sullivan v. Huese, 2 Colo, 424; Oreamuno v. Uncle Sam Co., 1 Nev. 215; Mallet v. Uncle Sam Co., Id. 188; Atchison v. Peterson, 20 Wall. 507-510; Rogers v. Brenton, 10 Q. B. 25; Carlyon v. Lovering. 1 Hurl. & N. 784; Madras Ry. Co. v. Zemindar, L. R. 1 Indian App. 364. So as to custom in booming logs. Saunders v. Clark, 106 Mass. 331. A uniform general custom as to the use of a stream by tanners ought to have a controlling force. Redfield, J., in Snow v. Parsons, 28 Vt. 459.

American Common Law.

The greatest part of the present American law of torts is derived from the common law of England. The early common-law reports are still the fountain head of learning on this subject. There is no national common law in the United States, distinct from that adopted by the several states, each for itself, except so far as the history of the English common law may be involved in the interpretation of the federal constitution. The judicial decisions, the usages and customs of the respective states, determine to what extent the common law has been introduced. What is common law in one state may not be so considered in another.357 No state courts in this country derive their existence from the common law. They are all established either by the provisions of the organic law or by legis lative enactment. Their jurisdiction is not uniform. Some of them have only a special jurisdiction, limited as to amounts or subjects in controversy. 358

Judicial Legislation.

As clearer and enlarged conceptions of legal rights and duties came with increasing complexity of society, the law adjective was adapted and extended to meet recognized changes in the law substantive. As new rights were admitted, new remedies were provided. Part of this development is the result of statutory enactment, but in large measure it has been effected by the courts. The doctrine of fellow servant may be cited as an illustration. "There is no branch of the subject of torts which gives rise to so many decisions which are difficult to reconcile. It forms perhaps the purest example of judge-made law, and all such law is pervaded with some uncertainty." The part which the courts have taken in this development, and judge-made law, has been severely criticised. 360

19 359

357 Wheaton v. Peters, 8 Pet. 591 (658); Smith v. Alabama, 124 U. S. 465, 8 Sup. Ct. 564.

358 In re Dean, 83 Me. 489, 22 Atl. 385.

359 Pig. Torts, 229.

360 Amos, Jur. 50; Jervis, C. J., in York, etc., R. Co. v. Queen, 1 El. & Bl. 858-864; Gibson. C. J., in Ammant v. Turnpike Road, 13 Serg. & R. 210. 212, 213; Essay on Judicial Legislation, Wm. Rand, Jr., 8 Harv. Law Rev. 328; Cooley, Torts, "Judicial Developments of the Law," pp. 19-21. Mr. Austin (2 Jur. 103-116, incl.) considers, in Lecture 38, "Groundless Objections to Ju

Common-Law Classification of Rights.

Unlike the civil law, the common law made no attempt at scientific classifications of duties and remedies. It knew no logical application of abstract principles of justice. Indeed, it did not distinguish clearly between the wrong done and the remedy provided therefor. The real question was not whether there was a tort, but whether legal means for redress could be found to fit the case. cordingly the law adjective practically determined rights.

261

Ac

It would not seem that there has been any scientific division of rights which is entirely satisfactory. The language and classification of Blackstone has passed into general thought and language. That familiar division was this: that the rights of persons are (1) absolute, viz. the enjoyment of (a) personal security, (b) personal liberty, (c) private property; and (2) relative, viz. (a) public, (b) private.362 Mr. Austin recognizes absolute and relative duties. A duty is relative, he says, or answers to a right, where the sovereign commands that the act shall be done or forborne towards a determinate party, other than the obliged. All other duties are absolute. However, in his "Analysis of Pervading Notions," 34 he denies that there are corresponding rights. "Absolute rights' and 'relative rights.' These expressions, as thus applied, are flatly absurd; for rights of both classes are relative, or, in other words, rights of both classes correlate with duties or obligations. The only difference is that the former correlate with duties which are incumbent upon the world at large; the latter correlate with obligations which are limited to determinated individuals." This general conclusion, as applied to the right of reputation, Mr. Townshend insists.

dicial Legislation," and in Lecture 39 the "Disadvantages of Judicial Legislation."

361 Perhaps as satisfactory a classification as any is that contained in note 3, ante, p. 3.

3621 Bl. Comm. cc. 1-18, incl.; 2 Kent, Comm. 1-34; 1 Burrill, Prac. 30. 3631 Aust. Jur. lect. 17, p. 278, sub. 579. "The notion of a legal duty involves something more than a tax on a certain course of conduct." O. W. Holmes, Jr., 6 Am. Law Rev. 723, 724.

"Rights are not absolute, but rela

364 Aust. Jur. lect. 14, p. 264, sub. 539. tive. Rights grow out of duty, and are limited by duty." Jenkins, J., in Farmers' Loan & Trust Co. v. Northern Pac. R. Co., 60 Fed. 803 (812).

370

is necessary. 365 There is a corresponding dispute with reference to property rights, as in the case of the right to lateral support.366 Although it is impossible to lay down any general principles to which all common-law actions of tort may be referred,367 it will be found that they are in the main directed to afford the simple remedy of pecuniary satisfaction for direct and obvious invasions of three elementary rights: (1) The right of personal liberty and security; (2) the right of reputation; and (3) the right of property.368 Domestic duties have been treated as rights of property.39 Breach of political rights has been made the subject of an action on a tort.3 The law has gone to great extremes to fully recognize all private rights. It recognizes the right of privacy as distinct from rights of property and reputation,371 and provides damages for its viola tion.372 Therefore, where a physician took an unmarried, unprofessional friend with him to attend a woman in confinement, and without real necessity for his assistance, both the physician and his friend were held liable in damages, although it was not until a long time afterwards that the patient or her husband discovered that the intruder was not a professional man.3 ́

365 Townsh. Sland. & L. c. 3.

373

366 Post, 752, "Nuisance," note 38. Cf. Gilfillan, C. J., in M'Cullough v. Railway Co., 52 Minn. 12-15, 53 N. W. 802, with Wood, Nuis. c. 5.

367 The classification of the modern jurisprudence has for convenience been anticipated. Ante, note 3, p. 2.

368 Clerk & L. Torts, p. 3.

369 Id. And see Jaynes v. Jaynes, 39 Hun, 40; Warren v. Warren, 89 Mich. 123, 50 N. W. 842.

370 Ashby v. White, 1 Salk. 19, 2 Ld. Raym. 938, 1 Smith, Lead. Cas. 464. Post, p. 135.

371 Post, c. 5, "Injunction."

372 4 Harv. Law Rev. 193.

373 De May v. Roberts, 46 Mich. 160, 9 N. W. 146; Schuyler v. Curtis, 27 Abb. N. C. 387, 15 N. Y. Supp. 787; Corliss v. E. W. Walker Co., 57 Fed. 434. For an article on the extension and development of the law of individual rights as particularly applicable to the rights of privacy, see Madras L. J., republished in 6 Green Bag, 498. Post, 356, "Injunction." That there is no invasion by opening windows, see Tapling v. Jones, 11 H. L. 290.