While this volume is devoted to a statement of the law and practice in actions for tort in New York, it would be manifestly incomplete without referring the practitioner to such sources as will enable him to pursue, if so disposed, the historical study of the subject, and by reference to elementary works to follow in the reported decisions of other jurisdictions, the modifications of, and exceptions to, the general principles as they have been applied in the courts of this State. Unusually full citations are given from text-writers, and an effort has been made in all cases to give the authority, both as a means of enabling ready reference to the work for fuller examination, and in justice to the author of the treatises cited. Reference is also made in very many instances to the English reports and those of other States and to Federal decisions, more especially those of the Supreme Court of the United States. It is said by one of the later and best equipped of text-writers that the earliest text-book he is able to find upon the subject is "A meager and unthinking digest of the law of actions for torts and wrongs, published in 1720," a work which the same writer characterizes as remarkable chiefly for the depth of historical A Art. 1. Authorities. ignorance which it occasionally reveals. This statement is made in connection with the suggestion that a complete theory of torts has not yet been found, the reason given being, that the subject is a modern one comparatively, so far as any scientific consideration of the topic is concerned. Still another writer, referring to the earlier work, expresses the view, "This book should be passed over as though it did not exist." Hilliard on Torts, published in 1859, was the first American work upon the subject and was followed by the standard English work of Addison in 1860. The latter work has passed through several editions and has been annotated by American editors from time to time, including Wood, and Dudley and Baylies. In 1881 Nathaniel C. Moak, with the efficient assistance of John T. Cook, annotated the English work of Underhill, entitled "Principles of the Law of Torts, or Wrongs Independent of Contract," the author giving rules and sub-rules containing the general principles of the law of Torts, sustained by English authorities, to which the American editors added numerous American decisions. The author published in England in 1900 a thoroughly revised edition under the title "The Law of Torts." Cooley on Torts, first published in 1878, second edition 1888, continues to be a standard work on the subject, an epitome of which is contained in his later work, "The Elements of Torts," prepared primarily for the use of students at law and instructors in law schools. Of this work the author says the design has been to present succinctly elements of the law of torts, and he further states that liberal use has been made of the text of the larger work upon the subject. Ray on "Imposed Duties" treats of the same subject in several volumes, largely devoted to the law of negligence, and liability of common carriers. Bishop in 1889 published "Commentaries on the Non-Contract Law, and especially as to common affairs not of Contract, or the every-day Rights and Torts," Mr. Bishop preferring that title because, as he says, under section 6, the title approaches as nearly to defining with certainty the bounds which the author has assigned for his subject as he has been able to make it. As a scientific contribution to the subject, Bigelow on Torts is a leading authority. Also Holmes on the Common Law, so far as it treats of Torts, mainly from a historical point of view. Art. 2. Definitions. Pollock on Torts is a scholarly work, and several American editions have been issued with notes; among others, that of Webb in 1894. Sir Frederick Pollock treats the subject to some extent historically, to a very great extent scientifically, and does not omit to give a practical view of the law on the subject. His work, however, like that of Jaggard and the admirable treatise of Hale on the same subject, is especially intended for and adapted to the wants of students at law rather than as a text-book for the practicing lawyer. To this number should be added "A Brief Summary of Torts," by Professor Erwin, which is precisely what its name implies, and serves an admirable purpose as an introduction to the study of the subject. Fraser on the Law of Torts, first published in 1888, went through a new edition in 1902. Ringwood on the Law of Torts (3d ed., 1898) is a hand-book, the author of which was lecturer to the Council of the Incorporated Law Society. All of these have been drawn upon to a greater or less extent and are referred to for what is in many cases a fuller discussion of the subject as to the elementary principles of the Law of Torts. The American and English Encyclopedia of Law is very frequently cited; reference to its pages will be found useful for full citation of authorities from other jurisdictions. The Cyclopedia of Law and Procedure is cited so far as it has treated the topic up to this time. Elementary works treating of specific branches of the subject will be referred to and commented upon under the appropriate heads, and as scarcely any topic of importance which may be classed under the general head of torts is without one or more text-books, it will be found that the literature of the subject is very extensive, more especially in connection with the Law of Negligence. ARTICLE II. DEFINITIONS. Every writer upon the subject of torts has undertaken to give a definition, and in this respect has been followed by very many judges, who, in the course of their opinions, have undertaken to define what is meant by the term "Tort." Moak's Underhill (p. 9), after citing the statement from Chapman v. Pickersgill, Art. 2. Definitions. 2 Wils. 146, that "Torts are infinitely various, for there is not anything in nature that may not be converted into an instrument of mischief," makes the comment that it is hopeless to attempt a definition of what constitutes a wrongful act upon which an action for tort may be founded: Cooley (p. 2) defines a tort to be: "Any wrong not consisting in mere breach of contract, for which the law undertakes to give to the injured party some appropriate remedy against the wrongdoer." Pollock, after stating (p. 2), that a "Tort is nothing but the French equivalent of our English word 'wrong,'" gives the definition (p. 4), "Tort is an action or omission, giving rise, in virtue of the common-law jurisdiction of the court, to a civil remedy which is not an action of contract." A tort is a breach of some duty between citizens defined by the general law which creates a civil cause of action. Encyclopedia of the Laws of England, vol. 12, p. 189, Art. Torts, by Sir Frederick Pollock. The same author says that the modern law of torts may be considered as enforcing so much of the moral duty" to hurt nobody by word or deed" as positive law can conveniently enforce in the present state of society. Bishop cites Co. Lit. 158, that "Tort" means nearly the same thing as the expression "civil wrong." He says further (§ 4): "A tort is one's disturbance of another in rights which the law has created, either in the absence of contract, or in consequence of the relation which a contract has established between the parties. Of course the wrong must be one which the law redresses, not a mere infraction of good morals." Hale on Torts (p. 4) calls attention to and criticises the definition suggested in Clerk & Lindley on Torts, 1, "A tort is a wrong independent of a contract for which the appropriate remedy is a common-law action," thus differentiating that class of civil wrongs. which can only be remedied in a divorce, ecclesiastical, or probate court, or in courts of equity. Pollock's definition, heretofore given, also calls attention to the common-law jurisdiction. Hale (p. 5) cites from 91 Ky. 121, what he regards as a very simple but in many respects admirable definition as follows: "A tort is a breach of duty fixed by municipal law, for which a suit for damages may be maintained." This is very like the simplest Art. 2. Definitions. and, upon the whole, most complete definition given in a recent legal periodical, defining torts, "as a certain class of wrongs for which there is a legal remedy in a common-law court." This, perhaps, is rather a characterization than a definition, but seems upon the whole the clearest and most concise statement, aside from the fact that it excludes the idea of a wrong cognizable in a court of equity, and thereby narrows the term much beyond what is justifiable under modern practice, since the jurisdiction of equity to prevent an intended wrong, or to relieve from the consequences of a tortious act, is firmly fixed and freely exercised. It must be noted that torts under our system are largely subject to the equitable jurisdiction of the court, as in cases of actions for relief from fraud, or by way of injunction to prevent wrongful acts. See chap. VI, "Remedies." The failure of definitions to define is aptly stated in Bigelow on Torts, as follows: "To attempt a definition which would tell its own story on its face would be hopeless. Indeed no definition, helped out however much by explanation, can convey an adequate notion of the meaning of the word; nothing short of careful study of the specific torts of the law will answer, for there is no such thing as a typical tort, an actual tort, that is to say, which contains all the elements entering into the rest. One tort is as perfect as another; and each tort differs from the others in its legal constituents. The definitions all have this in common, that there must be a breach of duty paramount, or, as we shall now put it, established by municipal law; and they all lead to an action for damages. These, facts must furnish our definition. Accordingly a tort may be said to be a breach of duty established by municipal law for which a suit for damages can be maintained; or, conversely, the infringement of a private right, or a public as a private right, established by municipal law." Bigelow, 29. The English Common Law Procedure Act of 1852 defines a tort as a wrong independent of contract. This definition does not, however, seem to be entirely satisfactory, since, as Cooley remarks (p. 104), "In many cases an action as for a tort or an action as for a breach of contract may be brought by the same party on the same state of facts." He explains this by the illustration of a false warranty to accomplish a sale of property, the purchaser having his remedy upon the contract of warranty, or in an action for a tort, |