It must not be inferred from the foregoing that tort and crime are convertible terms, for they are not. Treason, failing to respond to military duty, and in some states attempting suicide, are crimes, but not torts, while slander, malicious prosecution, and interference with contractual rights are generally regarded as torts, but not crimes.

Condition of Mind

Intention is of the very essence of criminal liability. "All crime exists primarily in the mind. A wrongful act and a wrongful intent must concur." 10 This does not mean that the intent to accomplish the particular crime is always specifically to be proven. It may be found by the jury from the circumstances under which the act was committed.11

Now it is not altogether true that intent is never involved in a tort; for instance, before a recovery can be had for fraud, it must be shown that there was a design on the part of defendant to mislead the plaintiff.12 Generally, however, as will be more fully explained later, the law of torts does not depend upon intention.

The reason for this difference is obvious. The result of a criminal prosecution is punishment, and punishment cannot properly be inflicted where the culpable mind can neither be shown nor inferred. The result of an action for tort is compensation, and as between the injured party and the wrongdoer it is evident that the latter generally should bear the loss, be his state of mind what it may. The difference between these two theories is well illustrated in the following cases:

which is violated by a tort is always a different right from that which is violated by a crime. The person of inherence in the former case is an individual; in the latter case is the state." Holland on Jurisprudence (10th Ed.) p. 320; Rhobidas v. City of Concord, 70 N. H. 90, 116, 47 Atl. 82, 51 L. R. A. 381, 85 Am. St. Rep. 604; Huntington v. Attrill, 146 U. S. 657, 688, 13 Sup. Ct. 224, 36 L. Ed 1123.

10 Gordon v. State, 52 Ala. 308, 309, 23 Am. Rep. 575.

11 People v. Fish, 125 N. Y. 136, 26 N. E. 319; People v. Batting, 49 How. Prac. (N. Y.) 392; Commonwealth v. Hersey, 2 Allen (Mass.) 173; Crosby v. People, 137 Ill. 325, 27 N. E. 49; People v. Carter, 96 Mich. 583, 56 N. W. 79; United States v. Long (C. C.) 30 Fed. 678. 12 See infra, p. 410 et seq.

Suppose an infant of tender years, while playing with matches, start a fire and burn my house. He cannot be held guilty of the crime of arson. Nor, should a maniac wound me with a revolver, can he be punished for attempted homicide. But if infant or maniac possess an estate, it is only fair that I should be reimbursed for my injuries.13 Suppose A. point a pistol at B. The pistol is unloaded, but B. does not know this. It has been held that the act will not constitute criminal assault, since intention to shoot is necessarily lacking, though the courts are not in accord on this point. But, as B.'s right to a sense of personal security has been violated. he can properly recover in tort.1 Again, if property stolen from A. is purchased from the thief by B. in the honest belief that the thief had title, B. cannot be convicted of larceny if he subsequently sell in good faith. But as by the act of selling he has exercised dominion over A.'s property in denial of the latter's right, he has committed the tort of conversion.15 Later on we shall discuss at length the mental attitude both of the party wronged and of the wrongdoer. Redress

Redress for the crime assumes the form of punishment; redress for the tort, compensation. The method pursued in the former instance is a prosecution instituted by the community as such, in which the plaintiff is described as "The People of the State of ""The State of " "The Commonwealth of

or in England as "The King." In the case of a tort, it is an action brought directly by the injured party.

Merger

It has frequently been stated that by the common law of England, where the same act constituted both a tort and a felony, the private injury was deemed merged in the public wrong, and the reason suggested that, as conviction of a felony entailed the forfeiture of all the felon's lands and goods to the crown, any action in tort would prove fruitless. But it seems better to say that the private remedy was merely

13 See infra, pp. 157 et seq. (infants), 162 et seq. (insane persons). 14 Though the distinction is not universally admitted. See infra, p. 256.

15 See infra, p. 375.

stayed until public justice was satisfied, since in England "the party injured is relied upon to take the place of the public prosecutor, and his interest in the accomplishment of public justice is enlisted and kept alive by postponing the redress of his private grievance." 18 The doctrine did not apply to misdemeanors, and in all probability it would not now be sustained by the English courts.

In the United States civil and criminal proceedings are kept separate. They may be begun simultaneously or successively, and the result of one will have no bearing upon the result of the other.17

VIOLATION OF MORAL DUTIES

5. That a mere moral duty has been disregarded, or a moral right violated, is not sufficient to give rise to an action for tort, where no legal right has been infringed.

Damnum Absque Injuria

There is a legal maxim that wherever there is a right the law will provide a remedy; but it must be evident upon re

18 Cooley on Torts, p. 152; Crosby v. Leng, 12 East, 409; Pettingill v. Rideout, 6 N. H. 454, 25 Am. Dec. 473. "The source whence the doctrine took its rise in England is well known. By the ancient common law felony was punished by the death of the criminal and the forfeiture of all his lands to the crown. Inasmuch as an action at law against a person, whose body could not be taken in execution and whose property and effects belonged to the king, would be a useless and fruitless remedy, it was held to be merged in the public offense. Besides, no such remedy in favor of the citizen could be allowed without a direct interference with the royal prerogative. Therefore a party injured by a felony could originally obtain no recompense out of the estate of a felon, nor even the restitution of his own property, except, after the conviction of the offender, by a proceeding called an appeal of felony, which was long disused and wholly abolished by St. 59 Geo. III, c. 46, or under St. 21 Hen. VIII, c. 11, by which the judges were empowered to grant writs of restitution, if the felon was convicted on the evidence of the party injured, or of others by his procurement." Boston & W. R. Corp. v. Dana, 1 Gray (Mass.) 83, 97.

17 Williams v. Dickenson, 28 Fla. 90, 9 South. 847; Pettingill v. Rideout, 6 N. H. 454, 25 Am. Dec. 473; Boston & W. R. Corp. v. Dana, 1 Gray (Mass.) 83; Mairs v. Baltimore & O. R. Co., 175 N. Y.

flection that, however desirable it may be that law and morals should coincide, the courts cannot well undertake to enforce every obligation which conscience imposes. Emphasis must be laid upon the fact that to give a cause of action the right or duty violated must have been recognized by the law. No matter how great may be the damage suffered by the injured party, he cannot secure redress where such recognition is not given.

If I, standing on a pier, see my neighbor struggling in the water, no law requires me to throw him the life preserver which I hold in my hand. "If I know that a villain intends to defraud or in any way to injure my neighbor, it is doubtless my duty as a good citizen and as a Christian man to put him on his guard. But there is no rule of law which renders me liable for his loss in case of my neglect of the duty. It is a moral duty simply, not recognized by law." 18 Suppose a master unjustifiably refuses to give to a servant a letter of recommendation or a certificate of character. The want of the letter or certificate may prevent the servant from procuring employment and may cause him infinite loss. Yet at common law the master owes to the servant no duty to furnish him such a statement, and the servant can maintain no action. Suppose A., knowing that B. is about to make a will

19

409, 67 N. E. 901; Newton v. Porter, 5 Lans. (N. Y.) 416 (affirmed in 69 N. Y. 133, 25 Am. Rep. 152); Smith v. Lockwood, 13 Barb. (N. Y.) 209. "Where the violation of a right admits of a civil and also of a criminal prosecution, the one is not merged in the other." Code Civ. Proc. N. Y. § 1899; Story v. Hammond, 4 Ohio, 376; Ballew v. Alexander, 6 Humph. (Tenn.) 433; Allison v. President, etc., of Farmers' Bank of Virginia, 6 Rand. (Va.) 204. "It is written on the hornbook of the law that the public and a party particularly aggrieved may each have a distinct, but concurrent, remedy for an act which happens to be both a public and a private wrong. Thus a person beaten may prosecute an action for the battery, while the commonwealth prosecutes an indictment for the breach of the peace, or a nuisance may be visited by indictment as a public wrong, while it is visited by action as a private injury; and for reasons equally good a libeler may be punished as a disturber of the peace, while he is made to respond in damages by the person libeled as a defamer of his charac ter." Per Gibson, J., in Foster v. Com., 8 Watts & S. (Pa.) 77, 79. 18 Ohio & M. R. Co. v. Kasson, 37 N. Y. 218, 224.

19 Cleveland, C., C. & St. L. Ry. Co. v. Jenkins, 174 Ill. 398, 51 N. E. 811, 62 L. R. A. 922, 66 Am. St. Rep. 296; Carrol v. Bird, 3 Esp. 201, 6 Rev. Rep. 824.

in favor of C., persuades him not to do so, or persuades B. to revoke a will already made. In what respect is C. injured? He had no existing right to the legacy, for until the testator's death he was merely the possible recipient of a mere gratuity.20 Again, A. would have no cause of action against B. merely because the latter has purchased from A.'s debtor property which might have been applied to the payment of the debt and persuaded the debtor to abscond so long as A. had no lien by judgment or otherwise on the property.21

23

A physician is under no obligation to render professional services, and he will not be liable for arbitrarily refusing to respond to a call.22 Nor is there a right of action against a merchant for his refusal to sell goods.2 In a recent case it was shown that plaintiff, while visiting the defendant's janitor, was' taken violently ill. Defendant ordered her to leave, threatening that if she did not do so he would have her removed. In so doing he was held to have violated no legal duty to plaintiff, so as to render him liable for the aggravation of her illness consequent upon her leaving.24

"20

Illustrations of the principle are legion, and it would serve no useful purpose to multiply citations.25 The maxim, “Ex damno sine injuria non oritur actio," 20 applies. It may be readily understood, if we translate "injuria" as "injury to a legal right," giving to "damage" its ordinary meaning.

Torts Not Necessarily Moral Wrongs

Reversing the shield we find that many torts for which the law gives a cause of action are really not moral wrongs at

20 Marshall v. De Haven, 209 Pa. 187, 58 Atl. 141; Hutchins v. Hutchins, 7 Hill (N. Y.) 104.

21 Lamb v. Stone, 11 Pick. (Mass.) 527; Braem v. Merchants' Nat. Bank, 127 N. Y. 508, 28 N. E. 597; Hurwitz v. Hurwitz, 10 Misc. Rep. 353, 31 N. Y. Supp. 25; Klous v. Hennessey, 13 R. I. 332; Hall v. Eaton, 25 Vt. 458. And see infra, p. 475.

22 Hurley v. Eddingfield, 156 Ind. 416. 59 N. E. 1058, 53 L. R. A. 135, 83 Am. St. Rep. 198.

23 Brewster v. Miller, 101 Ky. 368, 41 S. W. 301, 19 Ky. Law Rep. 593, 38 L. R. A. 505.

24 Tucker v. Burt, 152 Mich. 68, 115 N. W. 722, 17 L. R. A. (N. S.) 510.

25 See 38 Cyc. 418 et seq., where further illustrations are given. 26 "No cause of action arises out of damage without injury."