generally, such as the free exercise of one's calling. V. To possession and ownership. VI. To immunity from damage by fraud. B. Rights in personam: I. (a) Domestic: husband and wife, parent and child, guardian and ward. (b) Fiduciary: trusts. (c) Meritorious: quasi-contracts. (d) Official: rights against ministerial officers. II. Contracts. 5. Definitions of tort.-A tort is a civil injury, that is to say, it is a breach of any one of certain legal rights, for which breach the holder of the right may recover damages. Among the many definitions of a tort, no one of which is entirely satisfactory, we select the two following as best indicating the character of wrongs known as torts: "What we now understand by a tort is a breach of some duty between citizens, defined by the general law, which creates a civil cause of action." "A tort is a civil wrong for which the remedy is an action for damages, and which is not exclusively a breach of contract or the breach of a trust or other merely equitable obligation." 6. Torts and crimes.-For a better understanding of the meaning of torts it is well to compare them with crimes on the one hand, and with contracts on the other. One distinction between civil 6 Pollock, 14 Encyclopædia of the Laws of England, p. 134. 7 Salmond, Summary of the Law of Torts, p. 4. and criminal wrongs depends on the nature of the remedy provided by law. A civil injury or wrong calls for the use of civil proceedings. A crime calls for the use of criminal proceedings. The object of civil proceedings is to afford redress, or damages, directly to the person whose right has been infringed. The object of criminal proceedings is to punish the wrongdoer. But there is another way of considering the distinction between civil injuries and criminal injuries, which is thus well expressed by Blackstone: "Civil injuries are an infringement or privation of the private, or civil, rights belonging to individuals, considered as individuals; crimes are a breach and violation of the public rights and duties due to the whole community, considered as a community."8 While the same set of circumstances will sometimes, from one point of view, constitute a tort, and from another point of view, a crime, yet the right which is violated by a tort is always a different right from that which is violated by a crime. The holder of the right in the former case is an individual, in the latter case, the state. Thus, in the case of an assault and battery, viewed as a tort, the right violated is that which every man has that his bodily security shall be respected, and for the injury done the sufferer is entitled to recover damages. But the same act may be regarded as a breach of the peace, as a menace to society, and then may be punished by the state, the wrongdoer being subject to fine or imprisonment. 8 4 Blackstone, Commentaries, p. 5. 7. Torts and contracts.-While a breach of contract is a civil injury, in a looser view of what constitutes civil injuries, it is not a tort. Breaches of contract are a distinct species of wrong, which stands apart from all other species, and is governed by a special body of law, different in many respects from that which determines other forms of civil liability." "In cases of tort the duty that has been violated is general. It is owed either to all our fellow-subjects, or to some considerable class of them, and it is fixed by the law and the law alone. Here lies the difference between civil wrongs, properly so called, and breaches of contract. It is not right to break one's contract, though in cases of honest error due to the parties' intentions not being clearly expressed or otherwise, or of innocent disability preventing performance, there may be legal liability without any moral blame. But breach of contract, wilful or not, is the breach of duties which the parties have fixed for themselves. Duties under a contract may have to be interpreted or supplemented by artificial rules of law, but they cannot be superseded while there is any contract in being. The duties broken by the commission of civil wrongs are fixed by law, and independent of the will of the parties; and this is so even where they arise out of circumstances in which the responsible party's own act has placed him." 10 8. Conditions of liability for tort.-The object of the law of torts is to protect each individual in the community from aggressions by his fellow men, in Salmond, Summary of the Law of Torts, p. 3. 10 Pollock, Torts (8th ed.), p. 2. and criminal wrongs depends on the nature of the remedy provided by law. A civil injury or wrong calls for the use of civil proceedings. A crime calls for the use of criminal proceedings. The object of civil proceedings is to afford redress, or damages, directly to the person whose right has been infringed. The object of criminal proceedings is to punish the wrongdoer. But there is another way of considering the distinction between civil injuries and criminal injuries, which is thus well expressed by Blackstone: "Civil injuries are an infringement or privation of the private, or civil, rights belonging to individuals, considered as individuals; crimes are a breach and violation of the public rights and duties due to the whole community, considered as a community."8 While the same set of circumstances will sometimes, from one point of view, constitute a tort, and from another point of view, a crime, yet the right which is violated by a tort is always a different right from that which is violated by a crime. The holder of the right in the former case is an individual, in the latter case, the state. Thus, in the case of an assault and battery, viewed as a tort, the right violated is that which every man has that his bodily security shall be respected, and for the injury done the sufferer is entitled to recover damages. But the same act may be regarded as a breach of the peace, as a menace to society, and then may be punished by the state, the wrongdoer being subject to fine or imprisonment. 8 4 Blackstone, Commentaries, p. 5. result in harm that the law prohibits them absolutely and irrespective of the actual issue. We may say that in such cases the law conclusively presumes damage, because of the mischievous tendency of the act; whereas in other cases there is no presumption, and actual harm must be proved.' 9911 9. The theory of torts.-"The theory of torts may be summed up very simply. At the two extremes of the law are rules determined by policy without reference of any kind to morality. Certain harms a man may inflict even wickedly; for certain others he must answer, although his conduct has been prudent and beneficial to the community. But in the main the law started from those intentional wrongs which are the simplest and most pronounced cases, as well as nearest to the feeling of revenge which leads to self-redress. It thus naturally adopted the vocabulary, and in some degree the tests, of morals. But as the law has grown, even when its standards have continued to model themselves upon those of morality, they have necessarily become external, because they have considered, not the actual condition of the particular defendant, but whether his conduct would have been wrong in the fair average member of the community, whom he is expected to equal at his peril. * The known tendency of the act, however, under the known circumstances, to do harm may be accepted as the general test of conduct. * "The tendency of a given act to cause harm under given circumstances must be determined by ex11 Salmond, Summary of the Law of Torts, p. 8. |